Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession. (b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided. (c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities. (d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person. (e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld). (f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization. (g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2. (h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt. (i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 9 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Assisted Securitization and may also be included in filings with the Securities and Exchange Commission SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the any Assisted Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note each Initial Lender in updating the Disclosure Document in connection with an Assisted Securitization by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the any Assisted Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, if applicable and without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and/or such sections in Disclosure Documents under different headings and containing information provided by the Borrower relating to the Properties, Collateral, Senior Mezzanine Collateral, Mortgage Borrower, Senior Mezzanine Borrower, Borrower, Principal, Holdings, the Operating Company, the Mortgage Loan, Senior Mezzanine Loan and the Loan and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Principal, Holdings, the Collateral, the Senior Mezzanine Collateral and/or Operating Company, the Mortgage Loan and the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying the applicable Initial Lender, each Noteholder, JPM (whether or not it is the Lender), and any Affiliate of JPM or a Noteholder such Initial Lender that has filed any registration statement relating to the an Assisted Securitization or has acted as the sponsor or depositor in connection with the an Assisted Securitization, any Affiliate of JPM or a Noteholder the applicable Initial Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Assisted Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Assisted Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (whether or not arising from any third party claim) insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to the applicable Initial Lender or such Noteholder the Noteholders by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Initial Lender in writing and Initial Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 9.10 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.29.10. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.10 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.10), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.29.10, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.10 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.10.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 9.10 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) . Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 8 contracts
Sources: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM BSCMI (whether or not it is the Lender), any Affiliate of JPM or a Noteholder BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question BSCMI (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 5 contracts
Sources: Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust), Building Loan Agreement (Acadia Realty Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Lender shall provide Borrower adequate opportunity to review any such Disclosure Document is required and to be revised prior provide any such comment to the sale of all Securities, Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary.
(b) Borrower agrees to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrower, Borrower Affiliates, the Properties, Borrowerthe Property Manager and all other aspects of the Loan, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender(and for purposes of this SECTION 12.3, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question (which consent shall not this Section is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, Person
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower agrees hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 5 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (the entering into of which shall be at no cost to Borrower) (A) certifying that Borrower has carefully examined those portions of such Disclosure Documents specified by Lender for Borrower’s review pertaining to Borrower, Borrower’s Affiliates, Manager or the Loan and that each such Disclosure DocumentsDocument, including, without limitation, the as it relates to sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents specified with reasonable specificity by Lender relating to Borrower, Borrower’s Affiliates, the Property, Manager and any material aspects of the Loan, does not (except to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively specified by Borrower if Borrower does not agree with the Provided Information, the “Covered Disclosure Information”statements therein) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, damages or liabilities, costs or expenses (including, without limitation, legal including reasonable attorneys’ fees and expenses for enforcement disbursements, other than those arising out of these obligations the gross negligence, willful misconduct or bad faith of any of the foregoing proposed indemnitees (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch sections, in light of the circumstances under which they were made, not misleading (except that (x) Borrower’s obligation to indemnify in respect of any information contained in such sections that is derived in part from information provided by Borrower and in part from information provided by others unrelated to or not employed by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results from an error in any information provided (or which should have been provided) by Borrower which Borrower has been given the opportunity to examine and reasonably and promptly approve (Borrower hereby confirms that it has reviewed and approved each of the appraisals, engineering, environmental and asbestos reports prepared by third parties in connection with the Loan) and (iiiy) Borrower shall have no responsibility for the failure of any member of the Underwriting Group to accurately transcribe written information supplied by Borrower or the refusal of any member of the Underwriting Group to include any written information supplied by Borrower after an explicit direction from Borrower to do so) and (C) agreeing to reimburse each Indemnified Person Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities to the extent that such legal or other expenses are incurred in connection with matters for which Borrower has agreed to indemnify the Underwriter Group herein; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss, claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls major customer lists with respect to the Properties), Property and not subsequently retracted or modified in no event shall Borrower be liable for Liabilities arising from information contained whole or in a Disclosure Document that was not provided part so as to Borrower for comment at least five (5) Business Days eliminate the misstatement or omission in question prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)any Securitization. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 4 contracts
Sources: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Collateral,” ”, “Description of the Mezzanine Loans,” ”, “The Operating Company,” ”, “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” ”, and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 4 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the “Disclosed Materials”), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage ’s knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 4 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (ai) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each Guarantor agree to provide in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933each Disclosure Document, an indemnification certificate, as amended (the “Securities Act”set forth in Section 10.02(d)(ii), or the Securities and Exchange Act of 1934indemnifying Lender, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesany Issuer Person, the Rating AgenciesIssuer Group and/or the Underwriter Group (as those terms are defined in Section 10.02(d)(vii)) (each, an “Indemnified Party,” and service providers relating collectively “Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note conditions set forth in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionthis Section.
(bii) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement (i) certifying that certificate will provide that
(A) Borrower has and each Guarantor have carefully examined those sections of the Disclosure DocumentsDocuments relating to the following:
(1) Borrower, includingany SPE Equity Owner, without limitationany Guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (“Borrower Information”).
(2) The sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided Borrower Information or any information regarding (“Borrower Information Sections”).
(B) To the Properties, best of Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively ’s and each Guarantor’s knowledge with the Provided regard to Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM Borrower or a Noteholder that has filed of any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any Guarantor pursuant to this Section will not extend to the Third Party Information.
(iii) Borrower’s and each Guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(iv) Borrower and (iii) agreeing each Guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities.
(v) The indemnitors will be liable under Section 10.02(d) (ii), however, that Borrower shall have liability with respect to Liabilities arising out of (iii) or based upon the Covered Disclosure Information (iv) only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a Guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower Borrower, any SPE Equity Owner or any Guarantor, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Mortgaged Property.
(5vi) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be is in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) have and (iii) above shall will be effective whether or not an indemnification agreement certificate described in clause (ithis Section 10.02(d) above is provided and will be applicable based on information previously provided by or on behalf of Borrower or a Guarantor if the indemnification certificate is not provided.
(cvii) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions For purposes of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.10.02(d):
Appears in 3 contracts
Sources: Multifamily Loan and Security Agreement (Steadfast Income REIT, Inc.), Multifamily Loan and Security Agreement (KBS Legacy Partners Apartment REIT, Inc.), Multifamily Loan and Security Agreement (KBS Legacy Partners Apartment REIT, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), each Noteholderof its directors, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectivelyliabilities to which Lender, the “Liabilities”)) to which any such Indemnified Person Lender Group or the Underwriter Group may become subject insofar as the Liabilities such losses, claims, damages or liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, the “Liabilities”) and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Lender Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentencethereof; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall promptly notify the indemnifying party in writing, and shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 3 contracts
Sources: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Securitization Indemnification. (a) Extended Stay and Borrower understands understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Extended Stay will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the structural and collateral term sheet and those sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” ”, “Special Considerations,” ”, “Description of the Mortgage Loan and the Properties”, “Description of Collateral,” ”, “Description of the Mezzanine Loans,” ”, “The Operating Company,Manager” and “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (solely to the extent such information relates sections relate to or includes include any Provided Information or any information regarding the Properties, Borrower, Other Mezzanine Borrower, Mortgage Borrower, the Collateralany Mortgage Loan Party, the Senior Loan, the Mortgage Loan and/or the Other Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Persons for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower the Indemnifying Persons may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it such Indemnifying Person may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it such Indemnifying Person may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel and local counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Person. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
(j) Borrower shall jointly and severally indemnify the Lenders and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates against any Liabilities to which any such Lender, each of their respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
Appears in 3 contracts
Sources: Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC), Mezzanine Loan Agreement (ESH Hospitality LLC)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, a Securitization an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Disclosure Documents, including, without limitation, the Documents sections entitled “Risk Factors,” “Special Considerations,” Descriptions of the Mortgages”, “Description of the Collateral,” “Description of the Mezzanine Loans,” Mortgage Loans and Mortgaged Property”, “The Operating Company,” Manager”, “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,Mortgage Loan” and (Bii) such sections and such other information in the Disclosure Documents (Documents, but in each case solely as it relates to Borrower, Borrower Affiliates, the Property, Manager and all other aspects of the Loan and solely to the extent such the information relates therein was furnished to Lender by or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively on behalf of Borrower in connection with the Provided Informationpreparation of the Disclosure Documents or the underwriting and closing of the Loan (collectively, the “Covered Disclosure Information”) ), do not contain any untrue statement of a material fact known to Borrower or omit to state a material fact known to Borrower necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, such Indemnified Person, as they are incurred, Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons Lender Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Disclosed Materials”), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage ’s knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating or defending the Liabilities Securities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of and Borrower Principal will be liable in any such case under clauses (i) or based upon the Covered Disclosure Information (ii) above only to the extent that (I) such Mortgagor Information is accurately set forth in such filings under the Exchange Act or is accurately disclosed to the holders of Securities (as applicable), and (II) any such Securities Liabilities arise out of or are based upon any such untrue statement or omission of a material fact made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Mortgagor Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Lender shall provide Borrower adequate opportunity to review any such Disclosure Document is required and to be revised prior provide any such comment to the sale of all Securities, Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary.
(b) Borrower agrees to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrower, Borrower Affiliates, the Properties, Borrowerthe Property Manager and all other aspects of the Loan, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender(and for purposes of this SECTION 12.3, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question (which consent shall not this Section is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, Person
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Lender and Borrower agrees hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the such Disclosure DocumentsDocuments specified by Lender and that to Borrower’s actual knowledge each such Disclosure Document, includingas it relates to Borrower, without limitationBorrower Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Property and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Manager does not contain any untrue statement of a material fact or omit to state a material fact in Borrower’s actual knowledge, necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co. (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, compensatory damages (but not consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections known by Borrower to be untrue or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact in Borrower’s actual knowledge, required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other reasonable expenses reasonably incurred by Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact in Borrower’s actual knowledge required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be he made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered, to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(by underwriting discount i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or otherwiseomission; and (iii) actually received by any other equitable considerations appropriate in the Indemnified Persons in connection with the closing of the Loan or the Securitizationcircumstances.
(gf) Borrower agrees that Subject to the indemnificationprovisions of Section 11.22 hereof, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, the Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “"Risk Factors,” “Special Considerations,” “" "Description of the CollateralMortgage Loans and Mortgaged Property,” “Description of the Mezzanine Loans" "The Manager,” “The Operating Company,” “" and "The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (" only as they relate to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralLoan, the Senior Mezzanine Collateral and/or Operating Company) (collectively with Loan Documents, and the Provided InformationProperty and such sections relating to Borrower, the “Covered Disclosure Information”Loan, the Loan Documents, and the Property (and any other sections reasonably related thereto) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this SECTION 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any Affiliate the affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇") that has filed any the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with "REGISTRATION STATEMENT"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person the affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"▇▇▇▇▇▇ GROUP"), and ▇▇▇▇▇▇, each of its directors and each person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and ▇▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Property (5) Business Days prior to its dissemination or on which Borrower provided comments knew, in the normal course of owning and operating the Property to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accuratebe untrue, inaccurate or incomplete). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Urban Shopping Centers Inc), Loan Agreement (Urban Shopping Centers Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information required to be delivered by Borrower under Article 5 hereof necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideprovide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an "ISSUER PERSON") and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "ISSUER GROUP") for any Losses to which Lender or the Issuer Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (B) agreeing to reimburse Lender and the Issuer Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (A) or (B) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group by or on behalf of Borrower in connection with the SecuritizationProvided Information. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, an the indemnification agreement (i) certifying that provided for in Clauses (A) and (B) above shall be effective in the event an indemnification certificate certifying that Borrower has carefully examined any preliminary or a final offering memorandum described above or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and (B) all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower's knowledge, such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, misleading has been requested by Lender and has not been provided by Borrower and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide such requested indemnification certificate.
(iic) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in In connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (collectively, i) Lender and the “Indemnified Persons”), Issuer Group for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) Losses to which any such Indemnified Person Lender or the Issuer Group may become subject insofar as the Securities Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender or the Issuer Group for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Lender or the Issuer Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's and Borrower's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Manufactured Home Communities Inc), Loan Agreement (Manufactured Home Communities Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, upon request from the holder of the Note, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possessionsuch matters.
(b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, Borrower agrees to provide, in connection with the Securitization, provide an indemnification agreement certificate:
(iA) certifying that (A) Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the Disclosure Documents, including, without limitation, Property and the Loan including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “", "Description of the Collateral,” “Mortgage", "Description of the Mezzanine Loans,” “Mortgage Loan and Property", "The Operating Company,” “Manager", "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan", and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested and pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, Property or the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;
Appears in 2 contracts
Sources: Loan Agreement (Banyan Strategic Realty Trust), Loan Agreement (Banyan Strategic Realty Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "DISCLOSURE Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Lender shall provide Borrower adequate opportunity to review any such Disclosure Document is required and to be revised prior provide any such comment to the sale of all Securities, Lender as Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessiondeems necessary.
(b) Borrower agrees to provide, provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding Borrower, Borrower Affiliates, the Properties, Borrowerthe Property Manager and all other aspects of the Loan, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender(and for purposes of this SECTION 12.3, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section SECTION 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LENDER GROUP"), and Lender, each of its directors and each Person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clause (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements, rent rolls, appraisals, market studies, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading to the extent that Borrower failed to timely notify the Lender, Lender Group and/or the Underwriter Group with respect to the same and (iiiii) agreeing to reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting Group or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question (which consent shall not this Section is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether or not any Indemnified Person is an actual or potential indemnifiable under this Section, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 SECTION 12.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Securitization Indemnification. (a) Borrower understands Borrowers understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note Notes in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Properties, Borrowers, Principals, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, members, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filing, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review such Exchange Act Filing, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one one
(1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower Borrowers shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, underwriters or co-placement agents or co-initial purchasers of Securities issued in the Securitizationagents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (ii) or based upon the Covered Disclosure Information (iii) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Borrower in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5i) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.28.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(hg) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 8.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(ih) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (American Homes 4 Rent), Loan Agreement (American Homes 4 Rent)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Assisted Securitization and may also be included in filings with the Securities and Exchange Commission SEC pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the any Assisted Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note each Initial Lender in updating the Disclosure Document in connection with an Assisted Securitization by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the any Assisted Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, if applicable and without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and/or such sections in Disclosure Documents under different headings and containing information provided by the Borrower relating to the Properties, Borrower, Principal, Holdings, the Operating Company and the Loan and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerPrincipal, Holdings, the Collateral, Operating Company and the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying the applicable Initial Lender, each Noteholder, JPM (whether or not it is the Lender), and any Affiliate of JPM or a Noteholder such Initial Lender that has filed any registration statement relating to the an Assisted Securitization or has acted as the sponsor or depositor in connection with the an Assisted Securitization, any Affiliate of JPM or a Noteholder the applicable Initial Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Assisted Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Assisted Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (whether or not arising from any third party claim) insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to the applicable Initial Lender or such Noteholder the Noteholders by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Initial Lender in writing and Initial Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 9.10 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.29.10. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.10 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.10), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.29.10, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.10 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.10.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 9.10 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) . Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Securitization Indemnification. (a) Subject to Section 9.1.1(d), Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In Subject to Section 9.1.1(d), in the event that the any Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will shall cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees Subject to Section 9.1.1(d), the Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine Loans,” “The Operating CompanyMortgage Loan and Mortgaged Properties,” “The Borrower,” and “The Master Tenants,” “The Third Party Subleases”, “The Master Leases,” “The Lineage Subtenants”, the “Lineage Subleases”, “Certain Legal Aspects of the Mezzanine Loans,Mortgage Loan” and “the Ground Leases” (or similar entitled sections), and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrowerany Master Tenant, any Lineage Subtenant, Sole Member, Guarantor and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Parties for any losses, claims, damages, liabilities, liabilities or reasonable and documented costs or and expenses (including, without limitation, reasonable and documented legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person Party may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person Party for any reasonable and documented legal or other expenses incurred by such Indemnified PersonParty, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any). For purposes of this Agreement, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information shall not include, (v) any information subject to a material fact required confidentiality agreement as set forth in Section 9.1.1(d) above, other than ICE Disclosure Detail, (w) any untrue statements or omissions about which ▇▇▇▇▇▇▇▇ has provided notice in writing (which may be by email to be stated therein or necessary in order to make the statements in the Covered Disclosure Information▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇), in light ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq. (▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. (▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇)) and such other individuals that any of the circumstances under which they were madeforegoing may designate via email to ▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇@▇▇▇-▇▇▇▇▇.▇▇▇), not misleading ▇▇▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), ▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (ii▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇)) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating prior to the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing distribution of the claim Disclosure Document; provided that such notice is not inconsistent with (and the applicable comment, correction or the commencement objection by Borrower is consistent with) information provided by or on behalf of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person Lender in connection with the defense thereof except as provided in the following sentence; providedLoan, however, if the defendants in (x) any such action include both Borrower, on the one hand, and one statements which are derived from third party information not prepared by or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person Borrower, any Master Tenant, Sole Member or Persons. The Indemnified Person shall instruct its counsel Guarantor with respect to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records Borrower has provided notice to substantiate that such counsel’s fees and disbursements are solely related Lender in writing prior to the defense distribution of a claim for the Disclosure Document that Borrower is unable to verify, (y) any Disclosure Document (or any provisions thereof) with respect to which Borrower is required hereunder not provided a reasonable opportunity to indemnify review (unless such Indemnified Person. Disclosure Document (or such provisions thereof) is consistent in all material respects with information provided to Lender by or on behalf of Borrower), it being acknowledged and agreed that Borrower shall not be liable for the expenses in all events have two (2) Business Days to review each draft of more than one any Disclosure Document (1or any provision thereof), or (z) such separate counsel unless such any misstatements or omissions resulting from any Indemnified Person shall have reasonably concluded that there may be legal defenses available Party’s failure to it that are different from accurately transcribe written information delivered to Lender by or additional on behalf of Borrower or failure to those available include information provided to another Indemnified Person.
(e) Without the Lender by Borrower prior consent to distribution of the Indemnified Person in question (which consent shall not be unreasonably withheld)applicable Disclosure Document, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given has been provided a reasonable opportunity to review such Indemnified Person reasonable prior notice thereof Disclosure Documents (or the applicable portions thereof) and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out failed to notify Lender of such claim, action, suit misstatements or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)omissions.
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that Borrower and Borrower Principal have examined certain portions of such memorandum or prospectus or other document (A) Borrower has carefully examined including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and (B) all sections relating to Borrower, Operating Lessee, Borrower Principal, the Manager, their Affiliates, the Loan, the Loan Documents, any Operating Lease and the Property, and any risks or special considerations relating thereto, and that, to the knowledge of Borrower, such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading (any of the foregoing actions by Borrower and/or Borrower Principal, in each case, determined as of the date such information or statement is provided, a “Borrower Misstatement”), (iiB) indemnifying LenderLender (and for purposes of this Section 13.06, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender or the Issuer Group may become subject insofar as the Losses arise out of any Borrower Misstatement contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or are based upon any such untrue statement or alleged untrue omission made therein, as of the date such information or statement is provided, in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any material fact contained Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan) or in connection with the Covered Disclosure Information underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to each Individual Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.06 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.06, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.06 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any reasonable legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person counsel for an indemnified party shall have reasonably concluded that there may be legal defenses available to it its client that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.06(c) or Section 13.06(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.06(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.06(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.06 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrower, Mortgage Borrowerthe IP, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Harrahs Entertainment Inc), First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands Borrowers understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Properties, the Collateral, Mortgage Borrowers, Borrowers, Principal, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, members, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrowers after Borrowers have had an opportunity to review such Exchange Act Filing, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower Borrowers shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.this
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Provided Information or Required Reports for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possessionsuch matters.
(b) In connection with each of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, Borrower agrees to provide, in connection with the Securitization, provide an indemnification agreement certificate:
(iA) certifying that (A) Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Borrower, the Disclosure Documents, including, without limitation, Properties and the Loan including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “", "Description of the Collateral,” “Mortgages", "Description of the Mezzanine Loans,” “Mortgage Loans and Mortgaged Properties", "The Operating Company,” “Manager", "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan", and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested and pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralProperties or the Loan) to the best of Borrower's knowledge, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.;
Appears in 2 contracts
Sources: Loan Agreement (Innkeepers Usa Trust/Fl), Loan Agreement (Innkeepers Usa Trust/Fl)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, NRSROs and other advisory and service providers relating to the a Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the Note applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender)UBSRESI, any Affiliate of JPM or a Noteholder UBSRESI that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with the a Securitization, any Affiliate of JPM or a Noteholder UBSRESI that acts as an underwriter, placement agent or initial purchaser of the Securities issued in the connection with a Securitization, any other co-issuers, depositors, underwriters, co-placement agents or co-initial purchasers of the Securities issued in the connection with a Securitization, and each of their respective directors, officers, directors, partners, employees, representatives, agents and Affiliates Affiliates, and each Person or entity who that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified PersonsParties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Securitization Indemnification Liabilities”)) to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information information provided to Lender by Borrower, any Affiliate of Borrower or arise out any of their respective agents, counsel or are based upon representatives, (ii) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such information or necessary in order to make the statements in the Covered Disclosure Informationsuch information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement. Borrower also agrees to reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecuritization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, howeverobligation, loss, damage, penalty, action, judgment, suit, claim, cost or expense that Borrower shall have liability with respect to Liabilities arising arises out of or is based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurateProperty). This indemnity agreement provision will be in addition to any obligation or liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings and information therein or other reports containing comparable information that are required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, as it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager or any other aspect of the Loan, Borrower agrees to indemnify (i) indemnify the Securitization Indemnified Persons Parties for Securitization Indemnification Liabilities to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of of, or are based upon any upon, an untrue statement or alleged untrue statement omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of any material fact Borrower in connection with the Covered preparation of the Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light connection with the underwriting or closing of the circumstances under which they were madeLoan or any of the reports, not misleading statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Persons, as they are incurred, Party in connection with defending or investigating the Securitization Indemnification Liabilities.
(d) Promptly after receipt by an a Securitization Indemnified Person Party of notice of any claim or the commencement of any actionaction or suit, the such Securitization Indemnified Person Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that actionsuch action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified Person Party otherwise than under the provisions of this Section 9.2. If any such claim claim, action or action suit shall be brought against an any Securitization Indemnified PersonParty, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the such Securitization Indemnified PersonParty. After notice from any Borrower to an the applicable Securitization Indemnified Person Party of its Borrower’s election to assume the defense of such claim claim, action or actionsuit, Borrower shall not be liable to the such Securitization Indemnified Person Party for any legal or other costs and expenses subsequently incurred by the such Securitization Indemnified Person Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified Persons Parties on the other hand, and an a Securitization Indemnified Person Party shall have reasonably concluded that there are any legal defenses available to it and/or other Securitization Indemnified Persons Parties that are different or in addition to those available to Borrower, the Securitization Indemnified Person Party or Persons Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified Person Party or PersonsParties. The Securitization Indemnified Person Party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Securitization Indemnified Person Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are related solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified PersonParty. Borrower shall not be liable for the costs and expenses of more than one (1) such separate counsel unless such a Securitization Indemnified Person Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified PersonParty.
(e) Without the prior written consent of the applicable Securitization Indemnified Person in question Party (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified Person Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such the applicable Securitization Indemnified Person Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified Person hereunder Party from all liability Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or proceedingsproceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified Person Party without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified Person Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified PersonsParties, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified Persons Parties collectively pursuant to this paragraph Section 9.2(f) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Securitization Indemnified Persons Parties in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified Person Party is a formal party to any lawsuitsclaim, claims action, suit or other proceedingsproceeding. Borrower further agrees that the Securitization Indemnified Persons Parties are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of Borrower and the Securitization Indemnified Persons and Borrower Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Consolidated Tomoka Land Co), Loan Agreement (American Realty Capital - Retail Centers of America, Inc.)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the extent in Borrower’s possessionProperty and the Operating Tenant.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documents, including, without limitationfactual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, the Senior Mezzanine Collateral and/or Operating Company) (collectively with Tenant, the REIT, the Manager, the Franchisor, the Property and the Provided Information, the “Covered Disclosure Information”Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, and the Property and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the Indemnified Persondefense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower, and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note Note, which is the subject of the prospective Securitization, in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, in connection with the any Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralPledge Agreements,” “Description of the Mezzanine Loans,Collateral” “The Operating Company,” and “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerProperty, the Collateral, the Senior First Mezzanine Collateral Collateral, Mortgage Borrower, Borrower, the First Mezzanine Borrower and/or Operating Companythe Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Lender (whether or not it is the LenderLender that is the holder of the Note which is the subject of the Securitization), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any actual losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other actual, out-of-pocket expenses incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal or other actual, out-of-pocket expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 12.1.6 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.212.1.6. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld), conditioned or delayed, Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 12.1.6 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.212.1.6), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.212.1.6, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 12.1.6 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.212.1.6.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 12.1.6 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no not any obligation to act as depositor with respect to the Loan or any portion thereof which is the subject of any Securitization or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement, Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands Lender shall be permitted to share all Provided Information with any actual or potential purchaser, transferee, assignee, Servicer, participant or Investor in a Secondary Market Transaction, Rating Agencies, investment banking firms, accounting firms, law firms and other third-party advisory firms involved with the Loan Documents or the applicable Secondary Market Transaction. It is understood that certain of the Provided Information may ultimately be included in incorporated into any offering document (“Disclosure Documents in connection with Document”) for the Securitization Secondary Market Transaction, and also may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), and thus any actual or provided potential purchaser, transferee, assignee, Servicer, participant or made available to investors Investor in a Secondary Market Transaction may also see some or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale all of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit . Subject to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying LenderSection 13.20 hereof, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Borrower and each of their respective officers, directors, partners, employees, representatives, agents Guarantor irrevocably waives any and Affiliates and each Person or entity who controls all rights it may have under any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses applicable Laws (including, without limitation, legal fees and expenses for enforcement any right of these obligations (collectively, the “Liabilities”)privacy) to prohibit such disclosure. Lender and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Borrower or any Guarantor. Borrower and each Guarantor hereby indemnify the Underwriter Group as to any Liabilities to which any such Indemnified Person the Underwriter Group may become subject in connection with any Disclosure Document and/or any Covered Rating Agency Information, in each case, insofar as the such Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Borrower Provided Information or and/or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact in the Borrower Provided Information required to be stated therein or necessary in order to make the statements in the applicable Disclosure Document and/or Covered Disclosure Information, Rating Agency Information in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities misleading; provided, however, that Borrower such indemnity shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only apply to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with the Borrower Provided Information or information (other than the Property Information unless Borrower has actual knowledge that any such Property Information is inaccurate in any material respect) supplied by, or on behalf of, Borrower or any Guarantor or any Affiliate of Borrower and furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the any Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Loan. This The aforesaid indemnity agreement will be in addition to any liability which Borrower or Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such indemnification shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except only be effective to the extent that it has been materially prejudiced by such failure andLender accurately states the information supplied by, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereofon behalf of, Borrower shall be entitled to participate therein andor any Guarantor, to or any Affiliate of Borrower or any Guarantor, in the extent that it wishes, assume Disclosure Document. Lender may publicize the defense thereof with counsel reasonably satisfactory to existence of the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person Debt in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable marketing for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationSecondary Market Transaction.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Cole Real Estate Income Strategy (Daily Nav), Inc.), Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the any Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the any Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to cause Parent to provide, in connection with the any Securitization, an indemnification agreement (a “Securitization Indemnification Agreement”) (i) certifying that (A) Borrower Parent has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not Information does not, as of the date of the related disclosure document or as of the date of pricing the Securitization, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the any Securitization or has acted as the sponsor or depositor in connection with the any Securitization, any Affiliate of JPM or a Noteholder Person that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, underwriters or co-placement agents or co-initial purchasers of Securities issued in the Securitizationagents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Parent will be liable in any such case under clauses (ii) or based upon the Covered Disclosure Information (iii) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Parent, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Parent in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5i) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower any Relevant Party may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Any Securitization Indemnification Agreement shall provide that, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against BorrowerParent, notify Borrower Parent in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower Parent shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower Parent shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If Any Securitization Indemnification Agreement shall provide that, if any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower Parent thereof, Borrower Parent shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After Any Securitization Indemnification Agreement shall provide that, after notice from any Borrower Parent to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower Parent shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both BorrowerParent, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to BorrowerParent, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Any Securitization Indemnification Agreement shall provide that, the Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower Parent is required hereunder to indemnify such Indemnified Person. Borrower Any Securitization Indemnification Agreement shall provide that, Parent shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without Any Securitization Indemnification Agreement shall provide that, without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower Parent shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Parent shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As Any Securitization Indemnification Agreement shall provide that, as long as Borrower Parent has complied with its obligations to defend and indemnify hereunder, Borrower Parent shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Parent (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees Any Securitization Indemnification Agreement shall provide that, Parent will agree that if any indemnification or reimbursement sought pursuant to described in this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of described in this Section 9.28.2), then BorrowerParent, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerParent, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerParent, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding Any Securitization Indemnification Agreement shall provide that, notwithstanding the provisions of described in this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees Parent will agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees Any Securitization Indemnification Agreement shall provide that, Parent will agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Any Securitization Indemnification Agreement shall provide that, Parent will further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Altisource Residential Corp), Loan Agreement (Altisource Residential Corp)
Securitization Indemnification. (a) Borrower understands that certain information provided to Agent by Borrower and its agents, counsel and representatives relating to Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in the Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Third Party Report that the Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in the Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in the Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided the Borrower Provided Information Third Party Report that the Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) Borrower hereby agrees to provideindemnify Agent (and for purposes of this Section 9.2, in connection with Agent shall include the Securitizationinitial agent, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documentsinitial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon Borrower Provided Information, (B) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Borrower Provided Information or necessary in order to make the statements in the Covered Disclosure Borrower Provided Information, in light of the circumstances under which they were made, not misleading misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (iiiII) agreeing Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse each Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonAgent, as they are incurredLenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities providedLiabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, howeveror is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder Agent by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification provision will be in addition to any liability which Borrower may otherwise have. MoreoverBorrower acknowledges and agrees that any Person that is included in the Lender Group, the indemnification provided for in clauses (ii) and (iii) above Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required deemed to be stated therein or necessary in order a third-party beneficiary to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection this Agreement with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.2(b), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the "DISCLOSED MATERIALS"), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage 's knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Senior Mezzanine Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Securitization Indemnification. (a) Borrower understands that certain information provided to Agent by Borrower and their agents, counsel and representatives relating to Mortgage Borrower, Borrower, Guarantor, their respective constituent owners, and the Properties (such information, whether provided pursuant to Section 9.1 above or otherwise in connection with the Loan, collectively, the “Borrower Provided Information”; which “Borrower Provided Information” shall be deemed not to include (i) an untrue statement of any material fact contained in Borrower Provided Third Party Report, except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided Borrower Provided Third Party Report that Borrower Provided Third Party Report contained such untrue statement of material fact and Borrower failed to alert Agent to same, or (ii) an omission of a material fact in Borrower Provided Third Party Report (which omission shall be deemed material if such fact should have been included in Borrower Provided Third Party Report in order to make the statements, in light of the circumstances under which they were made, not misleading), except to the extent Borrower or Guarantor had actual knowledge at the time Borrower or Guarantor provided Borrower Provided Information Third Party Report that Borrower Provided Third Party Report reflected such omission and Borrower failed to alert Agent to same) may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Agent, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) Borrower hereby agrees to provideindemnify Agent (and for purposes of this Section 9.2, in connection with Agent shall include the Securitizationinitial agent, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documentsinitial lenders, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” their successors and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationassigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, director and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Agent, Lenders, the Lender Group, the Issuer or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon Borrower Provided Information, (B) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in Borrower Provided Information or necessary in order to make the statements in the Covered Disclosure Borrower Provided Information, in light of the circumstances under which they were made, not misleading misleading, or (C) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure); except, in each case, that (I) Borrower’s obligation to indemnify for any Liabilities that arise in connection with a Disclosure Document that derives in part from information contained in Borrower Provided Information and in part from information either prepared by the Lender Group, the Issuer, the Underwriter Group or any other Person shall be limited to any untrue statement or omission of material fact contained in Borrower Provided Information known to Borrower that results directly from the Borrower Provided Information (or omission from the Borrower Provided Information) and (iiiII) agreeing Borrower shall have no responsibility for (w) any statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to (or requested changes to) in writing to Agent or that were derived from Borrower Provided Third Party Reports, (x) numbers which have been submitted by Borrower and adjusted by any Indemnified Person from those submitted by Borrower, to the extent of such adjustment, (y) third party reports, such as environmental and physical condition reports that do not constitute Borrower Provided Third Party Reports, and (z) any financial projections. Borrower also agrees to reimburse each Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonAgent, as they are incurredLenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities providedLiabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, howeveror is based upon, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information in reliance upon upon, and in conformity with with, information furnished to Lender or such Noteholder Agent by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower, Mortgage Borrower and Guarantor, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification provision will be in addition to any liability which Borrower may otherwise have. MoreoverBorrower acknowledges and agrees that any Person that is included in the Lender Group, the indemnification provided for in clauses (ii) and (iii) above Issuer and/or the Underwriter Group that is not a direct party to this Agreement shall be effective whether or not an indemnification agreement described in clause (i) above is provideddeemed to be a third-party beneficiary to this Agreement with respect to this Section 9.2(b).
(c) In connection with filings under the any Exchange Act (if any)Filing or other reports containing comparable information that is required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, Borrower agrees to indemnify (i) indemnify Agent, Lenders, the Indemnified Persons Lender Group, the Issuer and the Underwriter Group for Liabilities to which any such Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based upon any upon, an alleged untrue statement or alleged omission or an untrue statement or omission made in reliance upon, and in conformity with, Borrower Provided Information furnished to Agent by or on behalf of any material fact Borrower in connection with the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light preparation of the circumstances under which they were madeDisclosure Document or in connection with the underwriting or closing of the Loan, not misleading including financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements and rent rolls with respect to any Property, and (ii) reimburse each Indemnified Person Agent, Lenders, the Lender Group, the Issuer and/or the Underwriter Group for any actual legal or other expenses reasonably incurred by such Indemnified PersonsAgent, as they are incurredLenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person such indemnified party pursuant to the immediately preceding sentence of its election to assume the defense of this Section 9.2(d), such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) any other indemnified party. Without the prior written consent of the Indemnified Person in question Agent (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no indemnifying party shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the indemnifying party shall have given such Indemnified Person Agent reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings. As long , and such settlement requires no statement as Borrower has complied with its obligations to, or an admission of, fault, culpability or a failure to defend and indemnify hereunderact, Borrower shall not be liable for any settlement made by any Indemnified Person without or on behalf of the consent of Borrower (which consent shall not be unreasonably withheld)indemnified party.
(fe) Borrower agrees that if any indemnification In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section 9.2(b) or reimbursement sought pursuant to this Section 9.2 (c) is finally judicially determined to be unavailable for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or is insufficient action in respect thereof) referred to hold any Indemnified Person harmless therein which would otherwise be indemnifiable under Section 9.2(b) or (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the Issuer’s and applicable Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (Biii) any other equitable considerations appropriate in the circumstances. Agent and Borrower agrees hereby agree that in it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. In no event shall Borrower be required to indemnify an indemnified party with respect to any matter to the amount to be contributed by extent arising from the Indemnified Persons collectively pursuant to this paragraph exceed the amount gross negligence or willful misconduct of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationan indemnified party.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Agent under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Clipper Realty Inc.), Mezzanine Loan Agreement (Clipper Realty Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In Notwithstanding the event that foregoing, Lender and its agents shall keep confidential such information specifically identified by Borrower as being subject to confidentiality provisions set forth in the Disclosure Document Management Agreement and, without limitation on the foregoing, no reference to Marriott Manager, any Affiliate of Marriott Manager, or any “Renaissance Trademark” (as defined in the Marriott Management Agreement) shall be made in any prospectus, private placement memorandum, offering circular or offering documentation related thereto issued which is required designed to be revised prior interest potential investors in debt or equity securities related to the sale of all SecuritiesProperty, Borrower will cooperate with the holder of the Note unless Marriott Manager has given its prior written approval to each such reference, which Marriott Manager may withhold in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate its sole and complete in all material respects to the extent in Borrower’s possessionabsolute discretion.
(b) Upon Lender’s reasonable request, Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the such Disclosure DocumentsDocuments specified by Lender and that to Borrower’s actual knowledge, includingeach such Disclosure Document, without limitationas it relates to Borrower, Borrower Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Property and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesManager, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact in Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), and Lender, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Lender or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections known by Borrower to be untrue or arise out of or are based upon the Covered omission or alleged omission to state therein a material fact in Borrower’s actual knowledge, required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Lender Group and/or the Underwriter Group for any reasonable legal or other reasonable expenses reasonably incurred by Lender, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrower in connection with the preparation of the Disclosure Information Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property. Notwithstanding anything to the contrary herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, Lender Group and the Underwriter Group. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with Exchange Act Filings, Borrower shall (i) indemnify Lender, the Lender Group and the Underwriter Group for Liabilities to which Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact in Borrower’s actual knowledge, required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained herein, if there is a lawsuit based upon an alleged untrue statement or an alleged omission and such allegations are proved to be untrue pursuant to a final court order which is unappealable, Borrower shall not be responsible for the legal fees incurred by Lender, Lender Group and the Underwriter Group.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (by underwriting discount i) Lender’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or otherwiseomission; and (iii) actually received by any other equitable considerations appropriate in the Indemnified Persons in connection with the closing of the Loan or the Securitizationcircumstances.
(gf) Borrower agrees that Subject to the indemnificationprovisions of Section 9.4 hereof, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (FelCor Lodging Trust Inc), Loan Agreement (FelCor Lodging Trust Inc)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the extent in Borrower’s possessionProperty and the Operating Tenant.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documents, including, without limitationfactual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, the Senior Mezzanine Operating Tenant, the REIT, the Manager, the Franchisor, the Property, the Collateral and/or Operating Company) (collectively with and the Provided Information, the “Covered Disclosure Information”Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, the Property, the Collateral and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the Indemnified Persondefense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from from
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other party who is not also found liable for such fraudulent misrepresentationequitable considerations appropriate in the circumstances. Lender, Borrower, and (B) Borrower agrees Guarantor hereby agree that in no event shall the amount to it would not be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Meristar Hospitality Operating Partnership Lp), Mezzanine Loan Agreement (Meristar Hospitality Corp)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency “term sheets” or presentations relating to the SecuritizationProperties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Disclosure DocumentsProperties and/or the Loan), includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” or similar sections, and (B) such all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge except as identified by Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) such sections (collectively with the Provided Informationand any other sections reasonably requested by Lender (collectively, the “Covered Disclosure InformationDisclosed Materials”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization“Issuer Person”), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsIssuer Group”), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “LiabilitiesUnderwriter Group”)) for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties but excluding any Projections made in good faith by Borrower. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, preliminary Disclosure Information Documents shall not inure to the benefit of any member of the Issuer Group or the Underwriting Group (or any person controlling such Issuer Group or Underwriting Group) from whom the Person asserting any such Loss purchased any securities which are the subject thereof if Borrower shall sustain the burden of proving that any such Loss resulted from the fact that such Person was not provided with a copy of the final Disclosure Documents at or prior to the written confirmation of the sale of such securities to such Person and the Loss resulted from untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in the final Disclosed Documents. The indemnity set forth in this Section 13.5 shall not apply with respect to any Securities Liabilities that arise out of or are based upon any untrue statement, misstatement or omission or any alleged untrue statement, misstatement or omission to state in the Disclosed Materials a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading, if such untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission related to statements and information that do not accurately reflect the Disclosed Materials or any corrections or updates to the Disclosed Materials which were provided prior to the final Disclosure Documents to investors and neither Borrower nor Borrower’s Principal has been given reasonable opportunity to review the proposed filing under the Securities Act or Exchange Act and to correct such untrue statement, misstatement or omission.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Borrower Principal’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Capital Lodging), Mezzanine Loan Agreement (Capital Lodging)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperties and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperties and/or the Loan), includingas applicable, without limitationrelating to Borrower, Borrower Principal, their Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description of Loan, the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Loan Documents and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, and any risks or special considerations relating thereto (the "REVIEWED SECTIONS"), and that, to the best of Borrower, Mortgage Borrower's knowledge, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Reviewed Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or necessary in order to make the statements in the Covered Disclosure Information, Reviewed Sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and Issuer Group in connection with investigating or defending the Liabilities Securities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that (i) any such Securities Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder any member of the Issuer Group or Underwriter Group by or on behalf of Borrower or Borrower Principal in connection with the preparation of the Disclosure Documents memorandum or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Properties and/or the Loan) or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), Properties and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was (ii) Lender or such Issuer Group or Investor Group did not provided to Borrower for comment at least five (5) Business Days prior to its dissemination have any actual independent knowledge of such untrue statement or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)omission. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided and shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates if Borrower or Borrower Principal do not provide the indemnification certificate; provided, however, neither Borrower nor Borrower Principal shall not be liable to the extent that any such Securities Liabilities relate solely to errors and omissions which Borrower expressly identified to Lender and remained uncorrected or with respect to any information not contained in the Reviewed Sections.
(c) In connection with filings under the Exchange Act (if any)or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Issuer Group and the Underwriter Group for Liabilities Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the LiabilitiesSecurities Liabilities provided, however, Borrower shall not be liable to the extent that any such Securities Liabilities relate solely to errors and omissions which Borrower expressly identified to Lender and remained uncorrected or with respect to any information not contained in the Reviewed Sections or as to which Lender or such Issuer Group or Investor Group had actual independent knowledge of such untrue statement, error or omission.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified 100 party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Corporate Property Associates 15 Inc), Loan Agreement (Corporate Property Associates 16 Global Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower or its agents, counsel and representatives may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, NRSROs and other advisory and service providers relating to the a Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all SecuritiesSecurities in connection with a Securitization, Borrower will cooperate with Lender (or, if applicable, the holder of the Note applicable interest in the Loan) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower hereby agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender)UBSRESI, any Affiliate of JPM or a Noteholder UBSRESI that has filed any registration statement relating to the Securitization or has acted as the issuer, the sponsor or depositor in connection with the a Securitization, any Affiliate of JPM or a Noteholder UBSRESI that acts as an underwriter, placement agent or initial purchaser of the Securities issued in the connection with a Securitization, any other co-issuers, depositors, underwriters, co-placement agents or co-initial purchasers of the Securities issued in the connection with a Securitization, and each of their respective directors, officers, directors, partners, employees, representatives, agents and Affiliates Affiliates, and each Person or entity who that controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Securitization Indemnified PersonsParties”), ) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Securitization Indemnification Liabilities”)) to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information information provided to Lender by Borrower, any Affiliate of Borrower or arise out any of their respective agents, counsel or are based upon representatives, (ii) the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such information or necessary in order to make the statements in the Covered Disclosure Informationsuch information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement. Borrower also agrees to reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecuritization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, howeverobligation, loss, damage, penalty, action, judgment, suit, claim, cost or expense that Borrower shall have liability with respect to Liabilities arising arises out of or is based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such an untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurateProperty). This indemnity agreement provision will be in addition to any obligation or liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act Filings and information therein or other reports containing comparable information that are required to be made “available” to holders of the Securities under Regulation AB or applicable Legal Requirements, as it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager (if any)) or any other aspect of the Loan, Borrower agrees to indemnify (i) indemnify the Securitization Indemnified Persons Parties for Securitization Indemnification Liabilities to which any such Securitization Indemnified Person Party may become subject insofar as the Securitization Indemnification Liabilities arise out of of, or are based upon any upon, an untrue statement or alleged untrue statement omission made in reliance upon, and in conformity with, information furnished to Lender by or on behalf of any material fact Borrower in connection with the Covered preparation of the Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationDocument, in light connection with the underwriting or closing of the circumstances under which they were madeLoan or any of the reports, not misleading statements or other information furnished by or on behalf of Borrower pursuant to the terms of this Agreement, including financial statements of Borrower, operating statements and rent rolls with respect to the Property, and (ii) reimburse each Securitization Indemnified Person Party for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified Persons, as they are incurred, Party in connection with defending or investigating the Securitization Indemnification Liabilities.
(d) Promptly after receipt by an a Securitization Indemnified Person Party of notice of any claim or the commencement of any actionaction or suit, the such Securitization Indemnified Person Party shall, if a claim for indemnification in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that actionsuch action or suit; provided, however, that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it Borrower from any liability which it may have to an any Securitization Indemnified Person Party otherwise than under the provisions of this Section 9.2. If any such claim claim, action or action suit shall be brought against an any Securitization Indemnified PersonParty, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the such Securitization Indemnified PersonParty. After notice from any Borrower to an the applicable Securitization Indemnified Person Party of its Borrower’s election to assume the defense of such claim claim, action or actionsuit, Borrower shall not be liable to the such Securitization Indemnified Person Party for any legal or other costs and expenses subsequently incurred by the such Securitization Indemnified Person Party in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action or suit include both Borrower, on the one hand, and one or more Securitization Indemnified Persons Parties on the other hand, and an a Securitization Indemnified Person Party shall have reasonably concluded that there are any legal defenses available to it and/or other Securitization Indemnified Persons Parties that are different or in addition to those available to Borrower, the Securitization Indemnified Person Party or Persons Parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action or suit on behalf of such Securitization Indemnified Person Party or PersonsParties. The Securitization Indemnified Person Party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Securitization Indemnified Person Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are related solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified PersonParty. Borrower shall not be liable for the costs and expenses of more than one (1) such separate counsel unless such a Securitization Indemnified Person Party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Securitization Indemnified PersonParty.
(e) Without the prior written consent of the applicable Securitization Indemnified Person in question Party (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Securitization Indemnified Person Party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such the applicable Securitization Indemnified Person Party reasonable prior notice thereof and shall have obtained an unconditional release of each Securitization Indemnified Person hereunder Party from all liability Securitization Indemnification Liabilities arising out of or relating to such claim, action, suit or proceedingsproceeding. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Securitization Indemnified Person Party without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Securitization Indemnified Person Party harmless (with respect only to the Securitization Indemnification Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, shall contribute to the Securitization Indemnification Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Securitization Indemnified PersonParty, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) above but also the relative faults of Borrower, on the one hand, and all Securitization Indemnified PersonsParties, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party Person found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Securitization Indemnified Persons Parties collectively pursuant to this paragraph Section 9.2(f) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Securitization Indemnified Persons Parties in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Securitization Indemnified Person Party is a formal party to any lawsuitsclaim, claims action, suit or other proceedingsproceeding. Borrower further agrees that the Securitization Indemnified Persons Parties are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of Borrower and the Securitization Indemnified Persons and Borrower Parties under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Ionis Pharmaceuticals Inc), Loan Agreement (Ionis Pharmaceuticals Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral Collateral, the Properties, Borrower, Senior Mezzanine Borrower, Baltimore Owner, Guarantor, Mortgage Principal, Mortgage Borrower, Manager, the Loan, any other Mezzanine Loan and/or Operating Companythe Mortgage Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, a placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing other than a statement or omission based upon the reports of third parties that do not to reimburse each the Indemnified Person for Persons knowledge contain any legal untrue statement or other expenses incurred by such Indemnified Person, as they are incurredomission of a material fact necessary in order to make the statements made, in connection with investigating or defending light of the Liabilities circumstances under which they were made, not misleading) provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information thereon in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower and its Affiliates in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Securitization, including, without limitation limitation, financial statements of Borrower or its Affiliates, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties)Properties (other than third party reports which to the Borrower’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower or its Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with the written information furnished to Borrower or its Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower or Guarantor fails to correct any such untrue statement, misstatement or omission with respect to Borrower, Guarantor or their Affiliates that is known to Borrower or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall not inure to the benefit of any Indemnified Person if Borrower be liable for Liabilities arising or its Affiliates shall sustain the burden of proving that any such loss, liability, claim, damager or expense resulted from information contained in the fact that a Disclosure Document that Person was not provided to Borrower for comment with a copy of the final Disclosure Documents at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damage or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Wyndham International Inc), Mezzanine Loan Agreement (Wyndham International Inc)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects with respect to Borrower, Guarantor, the extent in Borrower’s possessionProperty and the Operating Tenant.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus or term sheets, as applicable, solely with respect to the Disclosure Documents, including, without limitationfactual contents thereof related to the Loan, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralGuarantor, the Senior Mezzanine Collateral and/or Operating Company) (collectively with Tenant, the REIT, the Manager, the Franchisor, the Property and the Provided Information, the “Covered Disclosure Information”Information and such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above (but solely with respect to the Covered Disclosure Information factual contents thereof relating to the Loan, the Borrower, the Guarantor, the Operating Tenant, the REIT, the Manager, the Franchisor, and the Property and the Provided Information), or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any reasonable legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. The indemnifying party’s legal counsel shall control the Indemnified Persondefense of such action, except that no settlement or compromise shall be accepted or entered into which would bind any indemnified party unless such indemnified party has given its prior written consent thereto, which consent will not be unreasonably withheld. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party. Prior to the occurrence and the continuance of an Event of Default, in the event that any indemnified party wishes to enter into a settlement agreement in connection with such action which would give rise to an indemnified obligation of the indemnifying party hereunder and such indemnifying party does not consent to such settlement agreement, such indemnified party agrees not to enter into such settlement agreement provided the indemnifying party delivers evidence reasonably satisfactory to such indemnified party that the indemnifying party shall be able to satisfy its indemnification obligations under this Section in the event a judgment is rendered against the indemnifying party with respect to such action. In such event, the indemnifying party shall pay or, at the indemnified party’s option, reimburse it for the reasonable fees and expenses of its legal counsel and other professionals.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower, and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Meristar Hospitality Operating Partnership Lp), Loan Agreement (Meristar Hospitality Corp)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering circular or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum, includingprospectus or term sheets, as applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder L▇▇▇▇▇ Brothers Inc. (“L▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsL▇▇▇▇▇ Group”), and L▇▇▇▇▇, each of its directors and each Person who controls L▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and L▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons L▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the L▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) L▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether Lender hereunder shall include its officers and directors) or not it is the Lender), any Affiliate of JPM or a Noteholder Lender ("Lehman") that has filed any the registration statement relating to the Securitization or has acted as ▇▇▇▇▇▇tization (the sponsor or depositor in connection with the Securitization"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"Lehman Group"), and Lehman, each of its directors and each Person w▇▇ ▇▇▇trols Lehman w▇▇▇▇▇ the meaning of Section 15 of the Securities Act and S▇▇▇▇▇▇ 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, the Lehman Group or the Underwriter Group may become subject insofar as the Liabilities ▇▇▇ ▇iabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lehman Group and the Underwriter Group for any legal or other expenses expen▇▇▇ ▇▇asonably incurred by such Indemnified Person, as they are incurred, Lender and Lehman in connection with investigating or defending the Liabilities providedLiabilitie▇; ▇▇▇vided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (provided and shall be applicable based on information previously provided by Borrower or its Affiliates if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, does not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under provide the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcertificate.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Nomura (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Nomura that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Nomura that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-co underwriters, co-co placement agents or co-co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Nomura (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Nomura reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Loan Agreement (Thomas Properties Group Inc), Loan Agreement (Thomas Properties Group Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM Lender or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM Lender or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse or Lender, as applicable (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Credit Suisse or Lender, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4(a) hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 2 contracts
Sources: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Securitization Indemnification. (a) Borrower understands and each other Loan Party understand that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrower, Operating Lessee and the other Loan Parties will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have, at the Lender’s request in connection with each Securitization, carefully examined the structural and collateral term sheet and those sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” “Special ConsiderationsDescription of the Properties,” “Description of the CollateralLoan Parties,” “Description of the Property Manager, Management Agreement and Assignment and Subordination of Management Agreement” (to the extent any Manager is an Affiliated Manager), “Description of the Mortgage Loan,” “Description of the Mezzanine Loans,” Loan”, “The Operating Company,” “The Borrower” Annex E – Representations and Warranties of the Borrowers”, and “Certain Legal Aspects of the Mezzanine Loans,” and Risk Factors (B) such sections and such other information in the Disclosure Documents (solely to the extent such information relates the “Risk Factors” relate to or includes Borrower, any Provided Information or any information regarding the Properties, Borrowerother Loan Party, Mortgage Borrower, Operating Lessee, any other Mortgage Loan Party, any Mezzanine A Loan Party, Guarantor, Indemnitor, Affiliated Manager, the Mortgage Loan Collateral, the Senior Mezzanine A Loan Collateral and/or Operating Companyand the Collateral) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Persons for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower the Indemnifying Persons may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel and local counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Person. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower and the other Loan Parties shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
(j) Borrower shall jointly and severally indemnify the Lenders and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates against any Liabilities to which any such Lender, each of their respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Securitization Information and the financial reports relating to the Properties may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, an "OFFERING DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Offering Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Offering Document by providing all current information necessary to keep the Disclosure Offering Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined such memorandum or prospectus, as applicable, and the Disclosure Documents, including, without limitationsections and exhibits therein that describe the Properties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of Loan, the Collateral,” “Description of Borrower and the Mezzanine Loans,” “The Operating Company,” “The Borrower” Manager and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such exhibits (and any other information in the Disclosure Documents (sections reasonably requested), to the extent such information relates to or includes any Provided Information or any information regarding the Propertiesbest of Borrower's knowledge, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 14.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any Affiliate of JPM or a Noteholder Person that has filed any or may file the registration statement relating to a Securitization (the Securitization or has acted as "REGISTRATION STATEMENT"), each of its directors, each of its officers who have signed the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and Lender, each of its directors and each person who controls Lender within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the Covered Disclosure Information omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender and the Underwriter Group for any legal or other expenses reasonably incurred by Lender in connection with investigating or defending the Liabilities; provided, however, that Borrower will -------- ------- be liable in any such case under clauses (A), (B) or (C) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Borrower, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower may otherwise have.
(c) In connection with filings under the Exchange Act, Borrower agrees to indemnify (i) Lender, and the Underwriter Group for Liabilities to which Lender, or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Securitization Information or financial reports relating to the Properties a material fact required to be stated therein in the Securitization Information or necessary financial reports relating to the Properties in order to make the statements in the Covered Disclosure InformationSecuritization Information or financial reports relating to the Properties, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Lender or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, Borrower shall not be required to indemnify Lender of the Underwriting Group in connection with any Liability arising from the gross negligence or willful misconduct of Lender or the Underwriting Group.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 14.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 14.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 14.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any reasonable legal or other reasonable expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, -------- however, that Borrower shall not be required to indemnify Lender ------- or the Underwriting Group in connection with any Liability arising from the gross negligence or willful misconduct of Lender or the Underwriting Group; provided, further, that if the -------- ------- defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 14.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 14.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults -------- ------- that no person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) Lender's and Borrower's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 14.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Winston Hotels Inc)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by each Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, Agencies and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that such Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent specified by Lender and that each such information Disclosure Document, as it relates to or includes any Provided Information or any information regarding each Borrower, each Borrower's Affiliates, each of the Properties, Manager and all other aspects of the Loan, does not, and as to information provided in third party reports of engineers and environmental consultants, to Borrower's actual knowledge, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder UBS ("UBS") that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"UBS Group"), and UBS, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls UBS or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, the UBS Group or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of, or are based upon, the omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading, and (C) agreeing to reimburse Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the UBS Group and/or the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of, or is based upon, any such untrue statement or omission made therein in reliance upon, and in conformity with, information furnished to Lender by or on behalf of any Borrower in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including financial statements of any Borrower, operating statements and rent rolls with respect to each of the Properties. This indemnity agreement will be in addition to any liability which Borrowers may otherwise have.
(c) In connection with any Exchange Act Filing, each Borrower shall (i) indemnify Lender, the UBS Group and the Underwriter Group for Liabilities to which Lender, the UBS Group and/or the Underwriter Group may become subject insofar as the Liabilities arise out of, or are based upon, the omission or alleged omission to state in the Disclosure Document a material fact required to be stated in the Disclosure Document in order to make the statements in the Disclosure Document, in light of the circumstances under which they were made, not misleading, and (ii) reimburse Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by Lender, the UBS Group and/or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrowers in connection with the preparation of the Disclosure Document or in connection with the underwriting or closing of the Loan, including, without limitation, financial statements of Borrowers, operating statements and rent rolls with respect to the Property. This indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to Borrowers by Lender, any member of the UBS Group or any member of the Underwriter Group expressly for use in the Disclosure Document. The foregoing indemnity with respect to any untrue statement contained in or omission from a preliminary private placement memorandum or preliminary prospectus shall not inure to the benefit of any member of the Underwriting Group (or any person controlling such member of the Underwriting Group) from whom the Person asserting any such loss, liability, claim, damage or expense purchased any of the Securities which are the subject thereof if Borrowers shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from the fact that such Person was not sent or given a copy of the final private placement memorandum or final prospectus at or prior to the written confirmation of the sale of such Security to such Person and the loss, liability, claim, damage or expense resulted from an untrue statement contained in or omission from such preliminary private placement memorandum or preliminary prospectus that was corrected in the final private placement memorandum or final prospectus.
(d) In connection with the performance of Borrower's obligations under this Section 9.2, Lender hereby agrees that it shall use reasonable good faith efforts to deliver or cause to be delivered to Borrowers a draft of each of the Disclosure Documents, the Registration Statement and other documents relating to a proposed Securitization and requiring Borrower's review pursuant to the terms of this Agreement, in each case on or before the fifth (5th) Business Day prior to the date on which Borrowers are required to execute and deliver Borrowers' indemnification certificate described above in subparagraph (b).
(e) Lender agrees to indemnify and hold harmless each Borrower, each of its directors and each Person who Controls Borrower (the "Borrower Group") against any and all losses, claims, damages or liabilities, joint or several, to which the Borrower Group may become subject, under the Securities Act or otherwise, and will reimburse the Borrower Group for any legal or other expenses reasonably incurred by the Borrower Group in connection with investigating or defending any such loss, claim, damage, liability or action, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered a Disclosure Information Document or arise out of or are based upon the omission or the alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Personmisleading, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission relates to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure information that does not accurately reflect Provided Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(df) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personthe indemnifying party.
(eg) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees (by underwriting discount or otherwise) actually received by respective parties are entitled, the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 following factors shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.be considered:
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description portions of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (memorandum or prospectus or term sheets identified by Lender that relate to the extent such information relates to or includes any Provided Information or any information regarding Loan, the Properties, Borrower, Mortgage BorrowerPrincipal, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, Borrower, Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Citigroup”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsCitigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, Borrower, Principal, any Affiliated Manager and Guarantor contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in such sections relating to the Covered Disclosure InformationLoan, the Properties, Borrower, Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower or its Affiliates in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Citigroup Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact relating to the Loan, the Properties, Borrower, Principal, any Affiliated Manager or Guarantor required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Citigroup’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” “Mortgage Borrower,” “Description of the Mortgage Loan and Mortgaged Properties,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Mortgage Collateral, the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM BSCMI (whether or not it is the Lender), any Affiliate of JPM or a Noteholder BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question BSCMI (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xii) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Sunstone Hotel Investors, Inc.)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings (the “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with each of (i) a preliminary and a final private placement memorandum or offering circular or (ii) a preliminary and final prospectus or prospectus supplement, as applicable (collectively, the Securitization“Offering Materials”), an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loan and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested to the extent such information relates the same relate to or includes any Provided Information or any information regarding the PropertiesLoan, the Loan Documents, Borrower, Mortgage BorrowerGuarantor, Indemnitor, Principal or an Affiliate of any of the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”foregoing) do not (and with respect to any portion of the Offering Materials prepared in reliance on the reports of third-parties, to the best of Borrower’s knowledge, do not) contain any untrue statement of a material materiel fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement statement, if any, relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (other than such statement or misstatement made in Borrower’s good faith reliance upon the Covered Disclosure Information reports of third parties that do not to the best of Borrower’s knowledge, contain any untrue statement or misstatement or a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading) or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and ▇▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties)Property but excluding any projections made in good faith by Borrower; and provided that this Section 9.2 shall not apply to any loss, claim, damage or liability to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with written information furnished to Borrower by Lender, any member of the ▇▇▇▇▇▇ Group or any member of the Underwriter Group expressly for use in the Offering Materials unless Borrower, Principal or Guarantor fails to correct any such untrue statement, misstatement or omission with respect to Borrower, Principal or Indemnitor that is known to Borrower, Principal or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower, Principal or Guarantor. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, preliminary Offering Materials shall not inure to the benefit of any member of the ▇▇▇▇▇▇ Group or the Underwriting Group (or any person controlling such ▇▇▇▇▇▇ Group or Underwriting Group) from whom the Person asserting any such loss, liability, claim, damage or expense purchased any of the securities which are the subject thereof if Borrower be liable for Liabilities arising shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from information contained in a Disclosure Document the fact that such Person was not provided to Borrower for comment with a copy of the final Offering Materials at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damage or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Offering Materials that was corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Offering Materials. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made not misleading (other than any such statement, misstatement or omission made in reliance upon the reports of third parties that do not, to the best of Borrower’s knowledge, contain any untrue statement or misstatement, of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading misleading) and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities. The foregoing indemnity shall not apply with respect to any Liabilities that arise out of or are based upon any untrue statement, misstatement or omission or any alleged untrue statement, misstatement or omission to state in the Provided Information a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading, if such untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission related to statements of information that do not accurately reflect Provided Information or any corrections or updates to Provided Information which were provided prior to the delivery of the final Offering Materials to investors and neither Borrower, Principal nor Indemnitor has been given reasonable opportunity to review the proposed filing under the Exchange Act and to correct such untrue statement, misstatement or omission. In no event shall the indemnification, contribution or reimbursement obligations of Borrower under this Section 9.2 apply to any filings made under the Exchange Act after the initial filings, if any, are made.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified ▇▇▇▇▇ in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its have the right to employ separate counsel in any such action and to maintain reasonably detailed billing records for participate in the defense thereof but the fees and disbursements for which expenses of such counsel shall be at the expense of such Indemnified Person is seeking reimbursement hereunder unless: (i) the employment thereof has been specifically authorized by Borrower in writing; or (ii) in such claims or action there is, in the reasonable opinion of independent counsel, a conflict concerning any material issue between the position of Borrower and such Indemnified Person, in which case if such Indemnified Person notifies Borrower in writing that it elects to employ separate counsel at the expense of Borrower, then such counsel shall submit copies of such detailed billing records have the right to substantiate that such counsel’s fees and disbursements are solely related to assume the defense of a claim for which Borrower is required hereunder to indemnify such action on behalf of such Indemnified Person. ; provided, however, that unless, in the reasonable opinion of independent counsel, an actual or potential conflict exists between two or more Indemnified Persons, Borrower shall not be liable for required to pay the expenses fees and disbursements of more than one (1) such separate counsel unless such for all Indemnified Persons. Nothing set forth herein is intended to or shall impair the right of any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personretain separate counsel at its own expense.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons each of Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure DocumentsDocuments as such Disclosure Documents relate to Borrower, includingIndemnitor, Guarantor or the Property, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) the factual statements and representations contained in such sections and such other factual information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerManager and/or the Loan), the Collateralin each case, the Senior Mezzanine Collateral and/or Operating Company) as specifically identified by Lender (collectively with the Provided Information, the “Covered Disclosure Information”) do are not contain any untrue statement of a material fact false or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each NoteholderLender, JPM its designee (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-co underwriters, co-co placement agents or co-co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (includingexpenses, including without limitation, limitation legal fees and expenses for enforcement of these obligations expenses, to which any such Indemnified Person becomes subject pursuant to a final judgment (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement false or alleged untrue misleading statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.. (collectively, the “Liabilities”)
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement false or alleged untrue misleading statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, Persons in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Inland American Real Estate Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary in Borrower’s possession or control (including exercising all rights to obtain information from the CPLV Tenant under the CPLV Lease) as may be reasonably requested to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) In connection with the preparation of any Disclosure Document, Borrower agrees shall, if requested in writing by Lender, confirm that Borrower has examined the Covered Disclosure Information and that such Covered Disclosure Information does not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The Indemnifying Persons (i) agree to provide, in connection with the Securitization, an indemnification agreement (i) a certification certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information and that, to Borrower’s Knowledge the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading (provided that, for the avoidance of doubt, the above qualification to Borrower’s Knowledge with respect to the certification shall not apply or in way affect the indemnification obligations set forth in clause (ii) below), (ii) indemnifying indemnify Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents directors and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, out-of-pocket costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become becomes subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing agree to reimburse each Indemnified Person for any out-of-pocket legal or other expenses reasonably incurred by such Indemnified Person, as they are incurredwithin ten (10) Business Days of written demand, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This The foregoing indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided. Notwithstanding anything to the contrary contained herein, the liability of Indemnifying Persons under this clause (b) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Disclosure Document other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons, or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Disclosure Document and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities, provided, however, that the liability of Indemnifying Persons under this clause (c) shall not extend to any Liabilities (x) pertaining to any misstatements or omissions in any Exchange Act Filing other than Covered Disclosure Information requested by Lender in writing to be reviewed by Indemnifying Persons or (y) unless Lender requested in writing that Indemnifying Persons review such Covered Disclosure Information contained in the Exchange Act Filing and such Covered Disclosure Information contained untrue statements or omissions constituting Liabilities hereunder and Indemnifying Persons did not identify such untrue statements or omissions.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or -157- other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information required to be delivered by Borrower under Article 5 hereof necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideprovide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including -98- any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an "ISSUER PERSON") and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the "ISSUER GROUP") for any Losses to which Lender or the Issuer Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency "term sheets" or presentations relating to the Property and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (B) agreeing to reimburse Lender and the Issuer Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (A) or (B) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Issuer Group by or on behalf of Borrower in connection with the SecuritizationProvided Information. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, an the indemnification agreement (i) certifying that provided for in Clauses (A) and (B) above shall be effective in the event an indemnification certificate certifying that Borrower has carefully examined any preliminary or a final offering memorandum described above or prospectus or other document (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and (B) all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and that, to the best of Borrower's knowledge, such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, misleading has been requested by Lender and has not been provided by Borrower and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide such requested indemnification certificate.
(iic) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in In connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower agrees to indemnify (collectively, i) Lender and the “Indemnified Persons”), Issuer Group for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) Losses to which any such Indemnified Person Lender or the Issuer Group may become subject insofar as the Securities Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender or the Issuer Group for any legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Lender or the Issuer Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's and Borrower's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note Note, in all reasonable respects and at the holder of the Note’s expense, in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees Borrower, Principal and Guarantor agree to provide, provide in connection with each of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, (iii) such other offering materials as may be used for the Securitizationsecuritization of the Loan (such materials described in clause (i), (ii) or (iii), as applicable, being hereinafter referred to collectively as the “Offering Materials”), an indemnification agreement certificate (iA) certifying that (A) Borrower Borrower, Principal and Guarantor, as applicable, has carefully examined the Disclosure Documentsportions of, and only the portions of, the Offering Materials relating to Borrower, Manager, the Properties, Guarantor and Principal specifically, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating Company,Manager” and “The Borrower” and (collectively, the “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections Borrower Sections”), and such other information in the Disclosure Documents (to the extent such information relates Borrower Sections as they relate to or includes include any Provided Information or any information regarding Information, and as they relate to the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Credit Suisse First Boston”) that has filed any the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsCredit Suisse First Boston Group”), and Credit Suisse First Boston, each of its directors and each Person who controls Credit Suisse First Boston within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Credit Suisse First Boston, the Credit Suisse First Boston Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such Borrower Sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such Borrower Sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Credit Suisse First Boston Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and Credit Suisse First Boston in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clause (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees and Guarantor agree to indemnify (i) Lender, the Indemnified Persons Credit Suisse First Boston Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Credit Suisse First Boston Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement misstatement of any material fact in the Covered Disclosure Informationfactor, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Credit Suisse First Boston Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Credit Suisse First Boston Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Borrower agrees that no Indemnified Person shall have any liability to Borrower for or in connection with the Loan unless and to the extent that it is finally judicially determined that liability for losses, claims, damages, liabilities or expenses incurred by Borrower resulted directly from the fraud, illegal acts, gross negligence or willful misconduct of such Indemnified Person.
(e) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 9.2, except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its or their election to assume the defense of such claim or action, Borrower such entity shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and independent counsel to an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it such Indemnified Person and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personcounsel.
(ef) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall will not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless (A) Borrower shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of Lender and each other Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings, or (B) Borrower reaffirms in writing its indemnity and contribution obligations hereunder regardless of any common, federal, state or commonwealth statutory law to the contrary. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by Lender or any other Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(fg) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any a reason other than the fraud, illegal acts, gross negligence or willful misconduct of an Indemnified Person or is insufficient to hold any an Indemnified Person harmless (with respect only to the Liabilities losses, claims, damages, liabilities or expenses that are the subject of this Section 9.2), then Borrower, on the one hand, Borrower and such Indemnified Person, on the other hand, Person shall contribute to the Liabilities losses, claims, damages, liabilities and expenses for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, Borrower on the one hand, and such Indemnified Person, Person on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, Borrower on the one hand, and all Indemnified Persons, Persons on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees and Lender agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees and interest (by underwriting discount or otherwise) actually received by the Indemnified Persons Credit Suisse First Boston Group and the Underwriter Group in connection with the closing of the Loan or the Securitization.
(gh) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not Lender, any other Indemnified Person Person, the Credit Suisse First Boston Group or the Underwriter Group is a formal party to any such lawsuits, claims or other proceedings, and that such obligations shall extend upon the terms set forth in this Section 9.2 to any controlling person, director, partner, officer, employee, representative or agent of Lender, the Credit Suisse First Boston Group and the Underwriter Group (each, an “Indemnified Person”). Borrower further agrees that their indemnification, contribution and reimbursement obligations shall be in addition to any liability which they may otherwise have and shall extend, upon the same terms and conditions, to each Person, if any, who controls any Indemnified Persons are intended third party beneficiaries under this Section 9.2within the meaning of the Securities Act.
(hi) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(ij) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Koger Equity Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Property, Borrower, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (B) that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review such filing under the Exchange Act, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined such Disclosure Documents specified by Lender and that each such Disclosure Document, as it relates to Borrower, Borrower Affiliates, the Disclosure Property, Manager, Operating Partnership, Guarantor and all other aspects of the Loan Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderSUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, each NoteholderINDEMNIFYING LENDER (AND FOR PURPOSES OF THIS SECTION 11.2, JPM (whether or not it is the LenderLENDER HEREUNDER SHALL INCLUDE ITS OFFICERS AND DIRECTORS), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the SecuritizationTHE AFFILIATE OF ▇▇▇▇▇ FARGO BANK, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act NATIONAL ASSOCIATION (collectively, the “Indemnified Persons▇▇▇▇▇”) THAT HAS FILED THE REGISTRATION STATEMENT RELATING TO THE SECURITIZATION (THE “REGISTRATION STATEMENT”), for any lossesEACH OF ITS DIRECTORS, claimsEACH OF ITS OFFICERS WHO HAVE SIGNED THE REGISTRATION STATEMENT AND EACH PERSON THAT CONTROLS THE AFFILIATE WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT OR SECTION 20 OF THE EXCHANGE ACT (COLLECTIVELY, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the THE “Liabilities▇▇▇▇▇ GROUP”), AND ▇▇▇▇▇, AND ANY OTHER PLACEMENT AGENT OR UNDERWRITER WITH RESPECT TO THE SECURITIZATION, EACH OF THEIR RESPECTIVE DIRECTORS AND EACH PERSON WHO CONTROLS ▇▇▇▇▇ OR ANY OTHER PLACEMENT AGENT OR UNDERWRITER WITHIN THE MEANING OF SECTION 15 OF THE SECURITIES ACT AND SECTION 20 OF THE EXCHANGE ACT (COLLECTIVELY, THE “UNDERWRITER GROUP”) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationFOR ANY LOSSES, in light of the circumstances under which they were madeCLAIMS, not misleading DAMAGES OR LIABILITIES (COLLECTIVELY, THE “LIABILITIES”) TO WHICH LENDER, THE ▇▇▇▇▇ GROUP OR THE UNDERWRITER GROUP MAY BECOME SUBJECT INSOFAR AS THE LIABILITIES ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF ANY MATERIAL FACT CONTAINED IN SUCH SECTIONS OR ARISE OUT OF OR ARE BASED UPON THE OMISSION OR ALLEGED OMISSION TO STATE THEREIN A MATERIAL FACT REQUIRED TO BE STATED IN SUCH SECTIONS OR NECESSARY IN ORDER TO MAKE THE STATEMENTS IN SUCH SECTIONS, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the ▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five Property (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accuratethe “Provided Information”). This The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided; provided, however, such indemnity agreement shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document. The aforesaid indemnity will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act IN CONNECTION WITH EXCHANGE ACT FILINGS, SUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, BORROWER SHALL (if any)I) INDEMNIFY LENDER, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure InformationTHE ▇▇▇▇▇ GROUP AND THE UNDERWRITER GROUP FOR LIABILITIES TO WHICH LENDER, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure InformationTHE ▇▇▇▇▇ GROUP OR THE UNDERWRITER GROUP MAY BECOME SUBJECT INSOFAR AS THE LIABILITIES ARISE OUT OF OR ARE BASED UPON THE OMISSION OR ALLEGED OMISSION TO STATE IN THE PROVIDED INFORMATION A MATERIAL FACT REQUIRED TO BE STATED IN THE PROVIDED INFORMATION IN ORDER TO MAKE THE STATEMENTS IN THE PROVIDED INFORMATION, in light of the circumstances under which they were madeIN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, not misleading NOT MISLEADING and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided, however, that Borrower's liability under clauses (i) and (ii) above shall be effective only to the extent that Lender accurately sets forth the Provided Information in the applicable Disclosure Document. The obligations of Borrower pursuant to this Section 11.2(c) shall be in addition to but not in duplication of Section 11.2(b) above.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 11.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 11.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 11.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person indemnified party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person indemnified party is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s 's fees and disbursements are solely related to the defense of a claim for which Borrower the indemnifying party is required hereunder to indemnify such Indemnified Personindemnified party. Borrower The indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 11.2(b) or (which consent shall not c) hereof is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 11.2(b) or (whether or not any Indemnified Person is an actual or potential c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇' and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwiseper capita allocation.
(f) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationSUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, BORROWER SHALL JOINTLY AND SEVERALLY INDEMNIFY LENDER AND ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES AGAINST ANY LOSSES TO WHICH LENDER OR ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND AFFILIATES, MAY BECOME SUBJECT IN CONNECTION WITH ANY INDEMNIFICATION TO THE RATING AGENCIES IN CONNECTION WITH ISSUING, MONITORING OR MAINTAINING THE SECURITIES INSOFAR AS THE LOSSES ARISE OUT OF OR ARE BASED UPON ANY UNTRUE STATEMENT OF ANY MATERIAL FACT IN ANY INFORMATION PROVIDED BY OR ON BEHALF OF BORROWER TO THE RATING AGENCIES (THE “COVERED RATING AGENCY INFORMATION”) OR ARISE OUT OF OR ARE BASED UPON THE OMISSION TO STATE A MATERIAL FACT IN THE COVERED RATING AGENCY INFORMATION REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS IN COVERED RATING AGENCY INFORMATION, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 11.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information information provided to Lender by Borrowers and their agents, counsel and representatives may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrowers will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideUpon Lender’s reasonable request, Borrowers shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) Borrower has carefully certifying that Borrowers have examined such Disclosure Documents specified by Lender and that to each Borrower’s actual knowledge, each such Disclosure Document, as it relates to the Disclosure Documents, including, without limitationLoan Parties, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, Borrowerthe IP, Mortgage Borrowerthe First Mezzanine Collateral, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManagers, the “Covered Disclosure Information”) do Liquor Manager, the Gaming Operator and/or the Loan, does not contain any untrue statement of a material fact or omit to state a material fact in each Borrower’s actual knowledge necessary in order to make the statements made, in the light of the circumstances under which they were made, not materially misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether Lender or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any out-of-pocket losses, third party claims, actual damages (but not lost revenues, diminution in value and other consequential damages, liabilities, costs ) or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any such Disclosure Document specified by Lender for Borrowers’ review, as it relates to any Loan Party, any Loan Party’s Affiliates, Guarantors, HRHI, the Covered Disclosure Information Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, known by any Borrower to be untrue or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact in any Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements in the Covered Disclosure Informationtherein, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other reasonable expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of Borrowers will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower Borrowers in connection with the preparation of the any Disclosure Documents Document(s) or in connection with the underwriting or the closing of the Loan (including or in the ordinary course of the Loan, including, without limitation limitation, financial statements of Borrower and any Loan Party, operating statements and rent rolls with respect to any of the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which any Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify Borrowers, jointly and severally, shall (i) indemnify the Indemnified Persons for Liabilities to which any such Indemnified Person Persons may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in any Disclosure Documents specified by Lender for Borrowers’ review, as it relates to the Covered Disclosure InformationLoan Parties, the Loan Parties’ Affiliates, Guarantors, HRHI, the Properties, the IP, the First Mezzanine Collateral, the Collateral, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan, or the omission or alleged omission to state in the Covered any such Disclosure Information Document a material fact in any Loan Party’s actual knowledge, required to be stated therein or necessary in such Disclosure Document in order to make the statements in the Covered such Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading misleading, and (ii) reimburse each Indemnified Person for any reasonable legal or other expenses reasonably incurred by such Indemnified Persons, as they are incurred, Person in connection with defending or investigating the Liabilities; provided, however, that Borrowers will be liable in any such case under clauses (i) or (ii) above only to the extent that any such Liabilities arise out of or are based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by Borrowers in connection with the preparation of any Disclosure Document(s) or in connection with the underwriting or closing of the Loan or in the ordinary course of the Loan, including, without limitation, financial statements of any Loan Party, operating statements and rent rolls with respect to any of the Properties.
(d) Promptly after receipt by an Indemnified Person under this Section 9.3 of notice of any claim or the commencement of any action, the such Indemnified Person shallwill, if a claim in respect thereof is to be made against BorrowerBorrowers under this Section 9.3, notify Borrower Borrowers in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that the failure omission to so notify Borrower shall Borrowers will not relieve it any Borrower from any liability which it any Borrower may have under the indemnification provisions of this Section 9.2 to any Indemnified Person hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes material prejudice to any liability which it may have to an Indemnified Person otherwise than under Borrower. In the provisions of this Section 9.2. If event that any such claim or action shall be is brought against an any Indemnified Person, and it shall notify Borrower notifies Borrowers of the commencement thereof, Borrower shall Borrowers will be entitled to participate therein and, to the extent that it wishesthey may elect by written notice delivered to such Indemnified Person promptly after receiving the aforesaid notice from such Indemnified Person, to assume the defense thereof with counsel reasonably satisfactory to the such Indemnified Person. After notice from any Borrower Borrowers to an such Indemnified Person of its election to assume the defense of under this Section 9.3, such claim or action, Borrower shall not be liable to the Indemnified Person shall pay for any legal or other expenses subsequently incurred by the such Indemnified Person in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, Indemnified Person and one or more Indemnified Persons on any Borrower and the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different from or in addition additional to those available to BorrowerBorrowers, the Indemnified Person or Persons Person(s) shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or PersonsPerson(s) at the cost of Borrowers. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower Borrowers shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender, (which consent shall not be unreasonably withheld), no Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower Borrowers shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower has Borrowers have complied with its their obligations to defend and indemnify hereunder, Borrower Borrowers shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower Borrowers (which consent shall not be unreasonably withheld).
(f) Borrower agrees Borrowers agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 9.3 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.29.3), then BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to BorrowerBorrowers, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of BorrowerBorrowers, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (A) Lender’s and Borrowers’ relative knowledge and access to information concerning the matter with respect to which the claim was asserted; and (B) the opportunity to correct and prevent any statement or omission. Notwithstanding the provisions of this Section 9.29.3, (A) no party Person found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees Borrowers agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 9.3 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower Borrowers further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.29.3.
(h) The Subject to the provisions of Section 9.4 hereof, the liabilities and obligations of the Indemnified Persons Borrowers and Borrower Lender under this Section 9.2 9.3 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Nomura (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Nomura that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Nomura that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-co underwriters, co-co placement agents or co-co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Nomura (which consent shall not be unreasonably withheld, conditioned or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Nomura reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld, conditioned or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM BSCMI (whether or not it is the Lender), any Affiliate of JPM or a Noteholder BSCMI that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder BSCMI that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, 143 in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that 144 there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question BSCMI (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person BSCMI reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the books and records delivered to Lender pursuant to Section 5.1(k) may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus or private placement memorandum (each, a "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, the Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentsprovisions of such memorandum or prospectus, includingas applicable, pertaining to Borrower, Guarantor, the Properties and/or the Loan including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “" "The Operating CompanyManager,” “" "The Borrower” ", "the Guarantors" and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each NoteholderLender hereunder shall include its officers, JPM (whether or not it is the Lenderdirectors and employees), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers, Inc. ("▇▇▇▇▇▇") that has filed any the registration statement relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with "Registration Statement"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"▇▇▇▇▇▇ Group"), and ▇▇▇▇▇▇, each of its directors and each person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out are a direct result of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out are a direct result of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (provided that Borrower shall have had an opportunity to review and approve the relevant provisions of the memorandum or prospectus and provided further that Borrower shall have no obligation with respect to information unrelated to Borrower, Guarantor, the Properties and/or the Loan) and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and ▇▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties). Borrower shall not indemnify Lender from any Liabilities as a result of the inclusion of any erroneous or misleading information in the memorandum or prospectus, and in no event or the omission of material information from the memorandum or prospectus, pertaining to Borrower, the Properties or any aspect of the Loan, if Borrower or its counsel shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments have previously indicated to Lender or its counsel the erroneous or misleading nature of such information or the omissions of material information, as the case may be. Borrower shall not indemnify Lender from any Liabilities incurred as a result of the inclusion of any erroneous or misleading information in writing and Lender failed the memorandum or prospectus, or the omissions of material information from the memorandum or prospectus, unrelated to incorporate such comments (assuming such comments were accurate)Borrower, the Guarantor, the Properties or any aspect of the loan. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Horizon Group Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or and provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that any portion of the Disclosure Document relating to Borrower, Guarantor, Affiliated Manager or any Property is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information relating to Borrower, Guarantor, Affiliated Manager and any Property necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) the Borrower has carefully examined the Disclosure Documents, including, without limitation, Documents the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and such other sections as reasonably requested by Lender (Bin each case, to the extent such information relates to or includes any Provided Information or any information regarding any Property, Borrower, Manager and/or Guarantor) and (ii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Propertiesany Property, Borrower, Mortgage BorrowerManager, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyGuarantor ) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Covered Disclosure Information or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with Provided Information. The indemnification provided in clauses (B) and (C) above shall be effective whether or not the preparation of indemnification agreement described above is provided to Borrower or Guarantor; provided, however, such indemnity shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document. Notwithstanding the foregoing, Borrower shall have no liability under this Section 9.2(b) unless Lender provides Borrower with all Disclosure Documents and provides Borrower with a reasonable opportunity to review the same, and Borrower shall have no liability for any misstatement or omission to the extent Lender fails to revise the Disclosure Documents or in connection accordance with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising comments from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Borrower. This The aforesaid indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, Information or upon the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Disclosure Document related to Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) hereof is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwiseper capita allocation.
(f) actually received by the Indemnified Persons Borrower shall indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender or its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the closing Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in Covered Rating Agency Information, in light of the Loan or circumstances under which they were made, not misleading. Information provided to the SecuritizationRating Agencies by any member of the Underwriter Group and not provided to Borrower for review shall not be considered Covered Rating Agency Information.
(g) The liabilities and obligations of both Borrower agrees and Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(h) The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the "DISCLOSED MATERIALS"), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage 's knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER PERSON"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual Section 13.5(d), the indemnifying party shall contribute to the amount paid or potential payable by the indemnified party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out as a result of such claimlosses, actionclaims,
(i) the indemnified party's, suit Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or proceedingsomission; and (iii) any other equitable considerations appropriate in the circumstances. As long as Borrower has complied with its obligations to defend and indemnify hereunderLender, Borrower shall and Borrower Principal hereby agree that it would not be liable for any settlement made equitable if the amount of such contribution were determined by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)pro rata or per capita allocation.
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Mortgage Borrower, Operating Lessee, Guarantor, Manager, IP Collateral, the Management Agreement, the North Beach Property, the North Beach Property Documents, any Rental Management Program, any Mezzanine B Borrower, the Pledged Collateral and the Property), “Special Considerations,” “Description of the CollateralMortgage,” “Description of the Pledge Agreement,” “Description of the Mortgage Loan and Mortgaged Property,” “Description of the Mezzanine LoansLoan and Pledged Collateral”, “Description of the Borrower,” “The Description of the Operating CompanyLease and Operating Lessee,” “The BorrowerDescription of the Property Manager, Management Agreement and Assignment and Subordination of Management Agreement,” “Description of the Intellectual Property,” “Description of the Mezzanine Loan”, “Annex E – Representations and Warranties of the Borrowers”, “Certain Legal Aspects of the Mortgage Loan,” and “Certain Legal Aspects of the Mezzanine Loans,” (and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to section similarly titled or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Companycovering similar subject matters) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the and Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Strategic Hotels & Resorts, Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information and the Required Records may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will and Parent will cause each Loan Party to cooperate with the holder holders of the Note Notes in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provideto, and Parent shall cause each Loan Party to, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, an indemnification agreement certificate (iA) certifying that (A) Borrower and each other Loan Party has carefully examined the Disclosure Documentssuch memorandum or prospectus, as applicable, including, without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderAdministrative Agent and Lenders (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderAdministrative Agent and Lenders hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Nomura Securities International, Inc. ("NOMURA") that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with "REGISTRATION STATEMENT"), each of its directors, each of its officers who have signed the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, Registration Statement and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"NOMURA GROUP"), and each of Nomura, BT Alex. Brow▇ ▇▇▇orporated, each of its directors and each person who controls Nomura or BT Alex. Brow▇ ▇▇▇orporated, as the case may be, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, Administrative Agent, the Nomura Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch sections, in light of the circumstances under which they were made, not misleading misleading, and (iiiC) agreeing to reimburse each Indemnified Person Administrative Agent, Lenders, the Nomura Group 118 125 and the Underwriter Group for any reasonable legal or other out-of-pocket expenses reasonably incurred by such Indemnified PersonAdministrative Agent, as they are incurred, Lenders and the Nomura Group and the Underwriting Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of (or based upon the Covered Disclosure Information such Loan Party) will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liabilities arise loss, claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender Administrative Agent (or such Noteholder any Lender) by or on behalf of Borrower or any Loan Party in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including Debt, including, without limitation limitation, financial statements of Borrower or any Loan Party and operating statements statements, Rent Rolls, environmental site assessment reports and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)each Asset. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Bristol Hotel Co)
Securitization Indemnification. (a) Each Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, each Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The BorrowerBorrowers” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrowers, Guarantor, Manager, and/or other information in the possession of or obtainable by Manager, Borrowers or Guarantor from their counsel, any agent or any other vendor which have such information in their possession) and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, BorrowerBorrowers, Mortgage BorrowerGuarantor, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) subject to Section 9.4 hereof, jointly and severally indemnifying Lender, each Noteholder, JPM The Royal Bank of Scotland plc (whether or not it is the Lender), any Affiliate of JPM or a Noteholder The Royal Bank of Scotland plc that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder The Royal Bank of Scotland plc that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities (C) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Documents, but only to the extent based upon Provided Information or (D) arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower Borrowers may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the LiabilitiesIntentionally Omitted.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise other than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior written consent of Lender and, to the Indemnified Person in question extent applicable, The Royal Bank of Scotland plc (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification is sought or may be reasonably expected to be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender and The Royal Bank of Scotland plc, as applicable, reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph (f) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, no Borrower shall have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” shall indemnify Lender and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective its officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for affiliates against any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender and/or its officers, directors, partners, employees, representatives, agents and/or affiliates may become subject in connection with any information furnished to Lender by or at the direction of Borrower in connection with the underwriting or closing of the Loan or in connection with the preparation of any Disclosure Document, including, without limitation, financial statements of Borrower, operating statements and rent rolls with respect to the Property (collectively, the “Provided Information”), which Provided Information was furnished to the Rating Agencies in connection with issuing, monitoring and/or maintaining the Securities (“Covered Rating Agency Information”), insofar as the such Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Provided Information or and/or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact in the Provided Information required to be stated therein or necessary in order to make the statements in the applicable Disclosure Document and/or Covered Disclosure Rating Agency Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is providedmisleading.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 11.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands acknowledges and agrees that certain of the Provided Information may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesinvestors, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note Lender in updating the Disclosure Document Documents by providing all current information necessary to keep the Disclosure Document Documents accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees on behalf of Mortgage Borrower, Maryland Owner, Junior Mezzanine Borrower, Principal and Indemnitor (collectively, the “Indemnifying Persons”) agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure DocumentsDocuments as such Disclosure Documents relate to Borrower, includingMortgage Borrower, Maryland Owner, Principal, Indemnitor, the Properties, the Loan and the Junior Mezzanine Loan, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower,” “The Maryland Owner” and “Certain Legal Aspects of the Junior Mezzanine LoansLoan,” “Certain Legal Aspects of the Mortgage Loan” and (Bii) the factual statements and representations contained in such sections and such other information in the Disclosure Documents (to the extent such information relates to to, or is based on, or includes any Provided Information or any information regarding the PropertiesCollateral, Borrower, Mortgage Borrower, the CollateralIndemnitor, Maryland Owner, Junior Mezzanine Borrower, Manager, the Senior Loan and/or the Junior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM its -98- designee (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (collectively, the “Liabilities”), whether or not relating to a third party claim, insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an In the event any Indemnified Person of receives notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel (in addition to local counsel) unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Persons (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such the Indemnified Person Persons reasonable prior written notice thereof and shall have obtained an such settlement, compromise or consent provides for the unconditional release of each all Indemnified Person hereunder from Persons and is without any admission of fault, culpability or failure to act by or on behalf of the Indemnified Persons in connection with all liability arising out of matters relating to the claim that have been asserted against the Indemnified Persons by the other parties to such claim, action, suit or proceedingssettlement. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well -100- as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to All third party costs and expenses incurred by Borrower, Mortgage Borrower, Maryland Owner, Principal, Junior Mezzanine Borrower, Manager and Indemnitor in connection with Borrower’s, Mortgage Borrower’s, Maryland Owner’s, Principal’s, Junior Mezzanine Borrower’s, Manager’s and Indemnitor’s complying with requests made under this Section 9.2 (except for the contrary contained herein, Borrower fees and expenses of the Rating Agencies) shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitizationbe paid by Borrower.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Guarantor, Operating Lessee, the Management Agreement and the Property), “Special Considerations,” ”, “Description of the Collateral,” Mortgage”, “Description of the Mezzanine Loans,” Mortgage Loan and Mortgaged Property”, “Description of the Borrower”, “The Ground Lease”, “Description of Operating Lessee”, “Description of Operating Lease”, “Description of the Property Manager, Management Agreement and Subordination, Non-Disturbance and Attornment Agreements”, “The Manager”, “The Operating Company,Lessee” and “The Borrower” and “Certain Legal Aspects Annex E – Representations and Warranties of the Mezzanine Loans,Borrower” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”), in each case, solely to the extent relating to the collateral for the Loan, Borrower, Operating Lessee, Guarantor or a Manager, and (ii) do the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Persons for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.:
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus or term sheets, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and its Affiliates that have filed the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), each of their directors and each Person who controls any part of the Lender Group within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person▇▇▇▇▇▇, as they are incurred, the Lender Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based solely upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower ▇▇▇▇▇▇▇▇ agrees to indemnify (i) Lender, the Indemnified Persons Lender Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Lender Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Lender Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Persons▇▇▇▇▇▇, as they are incurred, the Lender Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory ▇▇▇▇▇▇▇▇▇▇▇▇ to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) ▇▇▇▇▇▇’s and ▇▇▇▇▇▇▇▇’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (SITE Centers Corp.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in of the Disclosure Documents regarding the Property, Borrower, Manager and/or the Loan (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”), and (B) do that the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (each, an “Indemnified Person” and collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any of the Covered Disclosure Information Documents, but only to the extent based upon Provided Information, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review the Disclosure Document, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Provided Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading misleading, and which untrue statement or alleged untrue statement is not expressly disclosed to Lender by Borrower after Borrower has had an opportunity to review such filing under the Exchange Act, and (ii) to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering circular or other offering document (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”"EXCHANGE ACT"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum, includingprospectus or term sheets, as applicable, including without limitation, the sections entitled “Risk Factors,” “"Special Considerations,” “" "Description of the CollateralMortgages,” “" "Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “" "The Operating CompanyManager,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lehman Brothers Inc. ("LEHMAN") that has filed any the registration statement stat▇▇▇▇▇ relating to the Securitization or has acted as S▇▇▇▇▇▇ization (the sponsor or depositor in connection with the Securitization"REGISTRATION STATEMENT"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"LEHMAN GROUP"), and Lehman, each of its directors and each Person wh▇ ▇▇▇▇rols Lehman wi▇▇▇▇ ▇he meaning of Section 15 of the Securities Act and Se▇▇▇▇▇ 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)"LIABILITIES") to which any such Indemnified Person Lender, the Lehman Group or the Underwriter Group may become subject insofar as the Liabilities ▇▇▇ ▇▇abilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Lehman Group and the Underwriter Group for any legal or other expenses expens▇▇ ▇▇▇sonably incurred by such Indemnified Person, as they are incurred, Lender and Lehman in connection with investigating or defending the Liabilities providedLiabilities; ▇▇▇▇ided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Lehman Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lend▇▇, ▇▇e Lehman Group or the Underwriter Group may become subject insofar as the Liabilities ▇▇▇ ▇▇abilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Lehman Group or the Underwriter Group for any legal or other expenses expense▇ ▇▇▇▇onably incurred by such Indemnified PersonsLender, as they are incurred, the Lehman Group or the Underwriter Group in connection with defending or investigating o▇ ▇▇▇▇stigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Lehman's and Borrower's relative knowledge and access to information ▇▇▇▇▇▇▇ing the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (U-Store-It Trust)
Securitization Indemnification. (a) Borrower understands and Guarantor understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Guarantor will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Guarantor agree to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus or term sheets, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Barclays Bank PLC (“Barclays”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsBarclays Group”), and Barclays, each of its directors and each Person who controls Barclays within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Barclays Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections described in clause (A) above, or arise out of or are based upon the Covered Disclosure Information omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Barclays Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Barclays Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Borrower. Guarantor will be liable in any such case under clauses (B) or (C) above only to the extent that any such Liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of Borrower and Guarantor in connection with the preparation of the memorandum or prospectus or in connection with the underwriting of the debt, including, without limitation, financial statements of Borrower and Guarantor, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Properties. This indemnification will be in addition to any liability which Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and shall be applicable based on information previously provided by Borrower and Guarantor or their respective Affiliates if Borrower and Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act, Borrower and Guarantor agree to indemnify (i) Lender, the Barclays Group and the Underwriter Group for Liabilities to which Lender, the Barclays Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Barclays Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Barclays Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Barclays’s and Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Guarantor hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwiseper capita allocation.
(f) actually received Notwithstanding any other provision of this Section 9.2, Borrower and Guarantor shall have no liability for information that was not prepared by the Indemnified Persons or delivered to Lender on behalf of Borrower and/or Guarantor or reviewed by Borrower and/or Guarantor in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons Borrower, Guarantor and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Netreit, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note (at such holder’s expense) in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document Provided Information contained therein accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (in each case only to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyInformation) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM Credit Suisse (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, that if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question Credit Suisse (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Credit Suisse reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Bh Re LLC)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an "Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined such Disclosure Documents specified by Lender and that the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information contained in the Disclosure Documents (Document to the extent such information that it relates to or includes any Provided Information or any information regarding the Properties, provided to Lender in writing by or on behalf of Borrower relating to Borrower, Mortgage BorrowerBorrower Affiliates, the CollateralProperty and Manager (together, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “"Covered Disclosure Information”) do "), does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization"Registration Statement"), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”)"▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group") , and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the "Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “"Liabilities”)") to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Kindercare Learning Centers Inc /De)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, collateral and/or structural term sheets, road show presentation materials or similar marketing materials, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the a Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined (1) the sections of the Disclosure DocumentsDocuments related to or which include financial and other information provided at any time prepared by, includingor on behalf of, Borrower, Guarantor and/or any Affiliated Manager, or any information regarding the Property, Borrower and each other Borrower Party, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating CompanyMortgaged Properties,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,Loan” or other similar sections, and (B2) such sections and such other information in the Disclosure Documents identified in writing by Lender (to the extent such information relates to or includes any Provided Information financial or any information regarding the Propertiesany Individual Property, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyManager and each other Borrower Party) (collectively together with the Provided Information, collectively, the “Covered Disclosure Information”), and (ii) such sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements mademade in the Covered Disclosure Information, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 11.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder W▇▇▇▇ Fargo that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and (including each of their respective officers, directors, partners, employees, representatives, agents its directors and Affiliates officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsW▇▇▇▇ Group”), and W▇▇▇▇ Fargo, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls W▇▇▇▇ Fargo or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the W▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the Covered Disclosure Information or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the W▇▇▇▇ Group and/or the Underwriter Group for any reasonable legal or other expenses actually incurred by such Indemnified PersonLender, as they are incurred, the W▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability that, with respect to any untrue statements or omissions contained in any third-party diligence reports or third party documents (e.g. any appraisals, the Title Insurance Policy, Surveys and zoning reports), Borrower shall not be responsible for any Liabilities arising out from such third parties’ failure to accurately transcribe information provided by or on behalf of Borrower to such third party unless Borrower was provided a reasonable opportunity to review such third party documentation (or the applicable portions thereof) and failed to notify Lender of such misstatements or omissions; and provided, further, the indemnification provided by this sentence shall not inure to the benefit of any indemnified party to the extent that any untrue statement or omission or alleged untrue statement or omission was made as a result of an error by Lender, the W▇▇▇▇ Group and the Underwriter Group in the manipulation of, or calculations based upon the Covered Disclosure upon, or any aggregation of, any Provided Information that, in each case, is otherwise correct; and provided, further, that Borrower will be liable in any such case only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the PropertiesProperty (collectively, the “Provided Information”). The indemnification provided for in clauses (B) and (C) above shall be effective whether or not the indemnification agreement described above is provided; provided, however, such indemnity shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document; provided, further, that, with respect to any untrue statements or omissions contained in any third-party diligence reports or third party documents (e.g. any appraisals, the Title Insurance Policy, Surveys and zoning reports), and in no event Borrower shall Borrower not be liable responsible for any Liabilities arising from such third parties’ failure to accurately transcribe information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination by or on which behalf of Borrower to such third party unless Borrower was provided comments a reasonable opportunity to Lender in writing review such third party documentation (or the applicable portions thereof) and Lender failed to incorporate notify Lender of such comments (assuming misstatements or omissions; and provided, further, the indemnification provided by this sentence shall not inure to the benefit of any indemnified party to the extent that any untrue statement or omission or alleged untrue statement or omission was made as a result of an error by Lender, the W▇▇▇▇ Group and the Underwriter Group in the manipulation of, or calculations based upon, or any aggregation of, any Provided Information that, in each case, is otherwise correct; and provided, further, that Borrower will be liable in any such comments were accurate)case only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with. This The aforesaid indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons W▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the W▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the W▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the W▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities; provided that, with respect to any untrue statements or omissions contained in any third party diligence reports or third party documents (e.g. any appraisals, the Title Insurance Policy, Surveys and zoning reports), (x) Borrower shall not be responsible for any Liabilities arising from such third parties failure to accurately transcribe information provided by or on behalf of Borrower to such third party unless Borrower was provided a reasonable opportunity to review such third party documentation (or the applicable portions thereof) and failed to notify Lender of such misstatements or omissions and (y) Borrower shall only be liable to the extent such untrue statement or omission of material fact was made in reliance upon information provided to such third party by or on behalf of Borrower; provided, further, such indemnity shall be limited to the Provided Information and shall only be effective to the extent that Lender accurately states the Provided Information in the applicable Disclosure Document.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 11.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 11.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 11.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any reasonable legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable, out-of-pocket costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person indemnified party shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person indemnified party is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the indemnifying party is required hereunder to indemnify such Indemnified Personindemnified party. Borrower The indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party which necessitate, in the commercially reasonable opinion of such indemnified party, the hiring of a separate counsel.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 11.2(b) or (which consent shall not c) hereof is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 11.2(b) or (whether or not any Indemnified Person is an actual or potential c) hereof, the indemnifying party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) Lender’s, the Underwriter Group’s and Borrower’s relative knowledge and access to information and relative faults concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwiseper capita allocation.
(f) actually received by the Indemnified Persons Borrower shall jointly and severally indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender or its officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the closing Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the Losses arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in Covered Rating Agency Information, in light of the Loan or the Securitizationcircumstances under which they were made, not misleading.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 11.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM CSFB (whether or not it is the Lender), any Affiliate of JPM or a Noteholder CSFB that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder CSFB that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one one
(1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior consent of the Indemnified Person in question CSFB (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person CSFB reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will shall cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesProperty, Borrower, Mortgage Borrower, Manager and/or the Collateral, the Senior Mezzanine Collateral and/or Operating CompanyLoan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM KeyBank (whether or not it is the Lender), any Affiliate of JPM or a Noteholder KeyBank that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder KeyBank that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will shall be in addition to any liability which that Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which that it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which that it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified any Indemnifying Person.
(e) Without the prior consent of the Indemnified Person in question KeyBank (which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person KeyBank reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceeding. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The rights, liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the DebtObligations.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Eagle Hospitality Properties Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the such Disclosure DocumentsDocuments specified by Lender and that each such Disclosure Document, includingas it relates to Borrower, without limitationBorrower Affiliates, the sections entitled “Risk Factors,” “Special Considerations,” “Description Property, Manager, Sponsor, Guarantor and all other aspects of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the PropertiesLoan, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; provided, however, that Borrower’s certification with respect to any materials prepared and provided by third parties may be limited to Borrower’s actual knowledge, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder KeyBank National Association (“KeyBank”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsKeyBank Group”), and KeyBank, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls KeyBank or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the KeyBank Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch sections, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the KeyBank Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the KeyBank Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. MoreoverNotwithstanding anything to the contrary contained in this Section 9.2(b), the indemnification nothing contained herein shall impose liability upon Borrower for any Liabilities arising out of or based upon an untrue statement of any material fact contained in any statement, report or document provided for in clauses (ii) and (iii) above shall be effective whether or to Lender on behalf of Borrower by a party who is not an indemnification agreement described in clause Affiliate of a Borrower (i) above is provideda “Third Party Report”), unless Borrower had actual knowledge at the time Borrower provided such statement, report or document to Lender that such Third Party Report contains such untrue statement.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees to indemnify shall (i) indemnify Lender, the Indemnified Persons KeyBank Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the KeyBank Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information Document a material fact required to be stated therein or necessary in the Disclosure Document in order to make the statements in the Covered Disclosure InformationDocument, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the KeyBank Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the KeyBank Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume the defense of such claim or actionindemnified party under this Section 9.2, Borrower such indemnified party shall not be liable to the Indemnified Person pay for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party at the cost of the indemnifying party. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreement provided for in question Section 9.2(b) or (which consent shall not c) is for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent unenforceable as to the entry of any judgment in any pending or threatened claim, action, suit or proceeding an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees (by underwriting discount or otherwise) actually received by respective parties are entitled, the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 following factors shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
be considered: (i) Notwithstanding anything KeyBank’s and Borrower’s relative knowledge and access to information concerning the contrary contained herein, Borrower shall have no obligation to act as depositor matter with respect to which the Loan claim was asserted; (ii) the opportunity to correct and prevent any statement or an issuer omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or registrant with respect to the Securities issued in any Securitizationper capita allocation.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Guarantor, the Management Agreement and the Properties), “Special Considerations,” “Description of the CollateralMortgage,” “Description of the Mezzanine LoansMortgage Loan and Mortgaged Property,” “The Operating CompanyDescription of the Borrower,” “The BorrowerDescription of the Property Manager, Management Agreement and Assignment and Subordination of Management Agreement” and “Certain Legal Aspects Annex E – Representations and Warranties of the Mezzanine Loans,Borrowers” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the and Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information reasonably necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description portions of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (memorandum or prospectus or term sheets identified by Lender that relate to the extent such information relates to or includes any Provided Information or any information regarding Loan, the Properties, Borrower, Mortgage BorrowerPrincipal, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) any Affiliated Manager and Guarantor and that such sections do not contain any untrue statement of a material fact relating to the Loan, the Properties, Borrower, Principal, any Affiliated Manager and Guarantor or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder Lender (“Citigroup”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsCitigroup Group”), and Citigroup, each of its directors and each Person who controls Citigroup within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to the Loan, the Properties, Borrower, Principal, any Affiliated Manager and Guarantor contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in such sections relating to the Covered Disclosure InformationLoan, the Properties, Borrower, Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower or its Affiliates in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons Citigroup Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the Citigroup Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact relating to the Loan, the Properties, Borrower, Principal, any Affiliated Manager or Guarantor required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Citigroup Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from from
(i) Citigroup’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other party who is equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed equitable if the amount of the fees (such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Risk Factors,” (solely to the extent the “Risk Factors” relate to Borrower, Guarantor, Operating Lessee, the Management Agreement and the Properties), “Special Considerations,” “Description of the CollateralMortgage,” “Description of the Mezzanine LoansMortgage Loan and Mortgaged Property,” “Description of the Borrower,” “Description of Operating Lessee”, “Description of Operating Lease”, “Description of the Property Manager, Management Agreement and Subordination, Non-Disturbance and Attornment Agreements”, “The Manager”, “The Operating Company,Lessee” and “The Borrower” and “Certain Legal Aspects Annex E – Representations and Warranties of the Mezzanine Loans,Borrowers” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”), in each case, solely to the extent relating to the collateral for the Loan, Borrower, Operating Lessee, Guarantor or a Manager, and (ii) do the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Persons for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender or its designee reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the and Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower Each of Borrower, Operating Lessee and each other Loan Party understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the any Disclosure Document is required to be revised prior to the sale of all Securities, Borrower Borrower, Operating Lessee and each other Loan Party will cooperate with the holder of the Note in updating the Covered Disclosure Document Information by providing all current information necessary to keep the Covered Disclosure Document Information accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Indemnifying Persons have, at Lender’s request in connection with each Securitization, reviewed the sections of the Disclosure Documents, including, without limitation, the sections Documents entitled “Summary of Offering Circular” and “Risk Factors,” (solely to the extent “Special ConsiderationsSummary of Offering Circular” and “Risk Factors” relate to Borrower, Operating Lessee, Principal, Guarantor, Manager (if Manager is an Affiliated Manager (which, for the purposes of this Section 9.2 shall not include Hilton Manager or any subsidiary of Hilton Worldwide Inc.)), the Operating Lease, the Management Agreement, the Franchise Agreement, the Mortgage Loan, the Mezzanine Loans, the Mezzanine Borrowers and the Properties), “Description of the Properties,” “Description of the CollateralMortgage,” “Description of the Mortgage Loan,” “Description of the Interest Rate Cap Agreement,” “Description of the Borrower, Guarantor and Related Parties,” “Description of the Ground Lease and Name of the Ground Lessor,” “Description of the Property Manager” (if Manager is an Affiliated Manager (which, for the purposes of this Section 9.2 shall not include Hilton Manager or any subsidiary of Hilton Worldwide Inc.)), “Description of the Operating Lease,” “Description of the Management Agreement and Assignment and Subordination of Management Agreement,” “Description of the Mezzanine Loans,” “The Operating CompanyDescription of the Franchise Agreements,” “The BorrowerDescription of the Mezzanine Borrowers,” “Use of Proceeds,” and “Certain Legal Aspects Annex E – Representations and Warranties of the Mezzanine LoansBorrowers,” in each case, (I) solely to the extent each of the foregoing relate to Borrower, the Properties, the Manager (if Manager is an Affiliated Manager (which, for the purposes of this Section 9.2 shall not include Hilton Manager or any subsidiary of Hilton Worldwide Inc.)), any Loan Party, Guarantor, Mezzanine Borrower, the Franchise Agreements and the Management Agreements, and (BII) such sections and such other excluding (x) any underwritten financial information in the Disclosure Documents (except to the extent such underwritten financial information relates to or includes any is included in the Provided Information or Information), (w) any information regarding (including financial information or forecasted information) that is solely obtained from any third party report commissioned by Lender, including, without limitation appraisals, property condition reports or environmental reports, (y) any electronic media (except those portions of Annex A that are not otherwise excluded pursuant to this clause (A) and Annex E) and (z) any financial projections or reforecasts relating to the Properties, Borrower, Mortgage Borrower, performance of the Collateral, Collateral (except to the Senior Mezzanine Collateral and/or Operating Companyextent such projections or reforecasts are included in the Provided Information) (collectively with the Provided Information, the “Covered Disclosure Information”) do and (ii) the Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), Persons for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any reasonable legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower Indemnifying Persons may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided. Notwithstanding the foregoing, the indemnification agreement shall not require, with respect to any financial projections or reforecasts that are included in the Provided Information or in the Disclosure Documents (to the extent such projections or reforecasts are included in the Provided Information), that the Indemnifying Persons be liable for any Liabilities resulting from the actual results being different from such projections or reforecasts so long as (i) the Indemnifying Persons had no reason to believe that such projections or reforecasts were materially inaccurate and (ii) the Indemnifying Persons have disclosed to Lender all facts known to them and have not failed to disclose any fact known to them, in each case that could be reasonably expected to cause any such projections or reforecasts or made herein to be materially misleading.
(c) In connection with filings under the Exchange Act (if any)Filings, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other out-of-pocket expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities; provided, that, notwithstanding anything to the contrary contained herein, (A) the Indemnifying Persons shall not be responsible for (x) any liabilities relating to untrue statements or omissions in any Covered Disclosure Information for which Borrower provided reasonable prior notice to Lender in writing prior to the applicable filings under the Exchange Act, or (y) any liabilities relating to any filings under the Exchange Act (or the applicable provisions thereof) that Borrower is not first provided an opportunity to review; and (ii) the Indemnifying Persons shall not be liable for any misstatements or omissions in the applicable filings under the Exchange Act relating to Covered Disclosure Information resulting from Lender’s failure to accurately transcribe written information by or on behalf of the Indemnifying Persons to Lender unless Borrower was provided a reasonable opportunity to review such filings under the Exchange Act with respect to the Covered Disclosure Information (or the applicable portions thereof) and failed to notify Lender of such misstatements or omissions.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel and local counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Borrower shall jointly and severally indemnify the Lender and each of its respective officers, directors, partners, employees, representatives, agents and Affiliates against any liabilities to which Lender, each of its respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading, provided that, notwithstanding anything to the contrary contained herein, (i) the Indemnifying Persons shall not be responsible for any (x) liabilities relating to untrue statements or omissions in any Covered Rating Agency Information which Borrower was provided an opportunity to review and provided notice to Lender in writing prior to the pricing of any Securities or (y) any liabilities relating to any Covered Rating Agency Information (or the applicable provisions thereof) that Borrower is not first provided an opportunity to review; and (ii) the Indemnifying Persons shall not be liable for any misstatements or omissions in any Covered Rating Agency Information resulting from Lender’s failure to accurately transcribe written information provided by or on behalf of the Indemnifying Persons to Lender unless Borrower was provided a reasonable opportunity to review such Covered Rating Agency Information (or the applicable portions thereof) and failed to notify Lender of such misstatements or omissions).
(f) Without the prior written consent of the Indemnified Person in question Lender or its designee (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower (i) the Indemnifying Person shall have given such the Indemnified Person Persons reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and (ii) such settlement, compromise or judgment does not include a statement as to, or admission of, fault, culpability or a failure to act by or on behalf of any Indemnified Person. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheldwithheld or delayed).
(fg) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the and Securitization.
(gh) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hi) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.Indemnifi
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information information provided to Lender by Borrower and its agents, counsel and representatives may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, an “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, shall provide in connection with the Securitization, an indemnification agreement each of (i) certifying that a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, an agreement (A) certifying that Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (delivered by Lender to the extent such information relates Borrower relating solely to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage BorrowerBorrower Affiliates, the CollateralProperty, and the Senior Mezzanine Collateral and/or Operating Company) Manager (collectively with the Provided Information, the “Covered Disclosure InformationSpecified Sections”) ), and that such Specified Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleadingmisleading or specifying such untrue statement (it being agreed that Borrower shall not be required to review any other sections of the Disclosure Document other than the Specified Sections), (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇ Brothers”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who that controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Brothers Group”), ▇▇▇▇▇▇ Brothers, any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇▇ Brothers or any other placement agent or underwriter within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Brothers Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such Specified Sections or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Informationsuch Specified Sections, in light of the circumstances under which they were made, not misleading (it being agreed that Borrower shall not be responsible for any losses which would not have been suffered if Lender had corrected any statements contained in the Specified Sections identified by Borrower in writing to have been untrue or misleading) and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Brothers Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonLender, as they are incurred, the ▇▇▇▇▇▇ Brothers Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss, claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder in its capacity as “lender” hereunder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents Document or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties)Property and provided further, and however, that with respect to statements made in no event shall such Specified Sections that are based upon information provided by third parties, Borrower will be liable for Liabilities arising from only if Borrower knew that such information contained in was false or omitted to state a Disclosure Document that was not provided material fact known to Borrower for comment at least five (5) Business Days prior and necessary in order to its dissemination or on make the statements made, in light of the circumstances under which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments they were accurate)made, not misleading. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands and Borrower Principal understand that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower and Borrower Principal will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees and Borrower Principal agree to provide, provide in connection with each of (i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agency "term sheets" or presentations relating to the SecuritizationProperty and/or the Loan) or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, which are delivered to Borrower and Borrower Principal for review, an indemnification agreement certificate (iA) certifying that (AI) Borrower has and Borrower Principal have carefully examined such memorandum or prospectus or other document actually delivered by or on behalf of Lender (including any Investor or Rating Agency "term sheets" or presentations relating to the Disclosure DocumentsProperty and/or the Loan), includingas applicable, including without limitation, the sections entitled “"Special Considerations," and/or "Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” " and “"Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” " or similar sections, and all sections relating to Borrower, Borrower Principal, Manager, their Affiliates, the Loan, the Loan Documents and the Property, and any risks or special considerations relating thereto, and any other sections reasonably requested by Lender (all such sections, collectively, the "DISCLOSED MATERIALS"), and (BII) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, best of Borrower, Mortgage 's knowledge except as specifically identified by Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) Disclosed Materials do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 13.5, each Noteholder, JPM (whether or not it is Lender hereunder shall include its officers and directors) and the Lender), any Affiliate of JPM or a Noteholder Lender that (i) has filed any the registration statement statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or has acted as the sponsor or depositor in connection with the Securitization(ii), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization"ISSUER Person"), and each director and officer of their respective officersany Issuer Person, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"ISSUER GROUP"), for and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees such Person within the meaning of Section 15 of the Securities Act and expenses for enforcement Section 20 of these obligations the Exchange Act (collectively, the “Liabilities”)"UNDERWRITER GROUP") for any Losses to which any such Indemnified Person Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Liabilities Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information Disclosed Materials or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in the Disclosed Materials or necessary in order to make the statements in the Disclosed Materials or in light of the circumstances under which they were made, not misleading (collectively the "SECURITIES LIABILITIES") and (C) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower will be liable in any such case under clauses (B) or (C) above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon the Disclosed Materials or any reports delivered by or on behalf of Borrower or Borrower Principal in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower or Borrower Principal, operating statements, rent rolls, environmental site assessment reports and Property condition reports with respect to the Property. This indemnity agreement will be in addition to any liability which Borrower and Borrower Principal may otherwise have. Moreover, the indemnification provided for in Clauses (B) and (C) above shall be effective whether or not an indemnification certificate described in (A) above is provided and, if Borrower or Borrower Principal do not provide the indemnification certificate, shall be applicable based on information previously provided by Borrower and Borrower Principal or their Affiliates.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, Borrower and Borrower Principal agree to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person Lender, the Issuer Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the Issuer Group or the Underwriter Group in connection with defending or investigating the Securities Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 13.5 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 13.5, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 13.5 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question (which consent shall not Section 13.5(c) or Section 13.5(d) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder (whether indemnifiable under Section 13.5(c) or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.213.5(d), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) the indemnified party's, Borrower's and Borrower Principal's relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender, Borrower and Borrower Principal hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower, Borrower Principal and Borrower Lender under this Section 9.2 13.5 shall survive the termination satisfaction of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentsrelevant portions of such memorandum or prospectus or term sheets, includingas applicable, which relate to Borrower and its Affiliates or the Property, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating Company,” and “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC (“▇▇▇▇▇▇ ▇▇▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any lossesLosses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate; provided, however, Borrower shall not be liable in any such case to the extent that any such Liabilities relate solely to errors or omissions contained in documents prepared by a Person other than Borrower, Principal, Guarantor or any of their Affiliates, unless Borrower knew or should have known about such error or omission.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged actual omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party, hi the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available (in addition to it that are different from or additional to those available to another Indemnified Personindemnifying party’s own attorneys) regardless of the number of indemnified parties.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liability (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification Liability (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Piedmont Office Realty Trust, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus supplement, private placement memorandum, offering circular or other offering document (each a “Disclosure Document”) and may also be included in filings (an “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors Investors or prospective investors Investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus or term sheets, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder L▇▇▇▇▇ Brothers Inc. (“L▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsL▇▇▇▇▇ Group”), and L▇▇▇▇▇, each of its directors and each Person who controls L▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender the L▇▇▇▇▇ Group and the Underwriter Group in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons L▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the L▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered:
(i) L▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined solely by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands acknowledges and agrees that certain of the Provided Information may be included in Disclosure Documents in connection with the a Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesinvestors, the Rating Agencies, and service providers relating to the a Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note Lender in updating the Disclosure Document Documents by providing all current information necessary to keep the Disclosure Document Documents accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower on behalf of Mortgage Borrower, Maryland Owner, Senior Mezzanine Borrower, Principal and Indemnitor (collectively, the “Indemnifying Persons”) agrees to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has the Indemnifying Persons have carefully examined the Disclosure DocumentsDocuments as such Disclosure Documents relate to Borrower, includingSenior Mortgage Borrower, Maryland Owner, Principal, Indemnitor, the Properties, the Loan and the Senior Mezzanine Loan, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Properties,” “The Operating CompanyManager,” “The Borrower,” “The Maryland Owner” and “Certain Legal Aspects of the Senior Mezzanine LoansLoan,” “Certain Legal Aspects of the Mortgage Loan” and (Bii) the factual statements and representations contained in such sections and such other information in the Disclosure Documents (to the extent such information relates to to, or is based on, or includes any Provided Information or any information regarding the PropertiesCollateral, Borrower, Mortgage Borrower, Indemnitor, Maryland Owner, Senior Mezzanine Borrower, Manager, the Collateral, Loan and/or the Senior Mezzanine Collateral and/or Operating Company) Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) jointly and severally indemnifying Lender, each Noteholder, JPM its designee (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person -101- within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject (collectively, the “Liabilities”), whether or not relating to a third party claim, insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Inland Western Retail Real Estate Trust Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings (the “Exchange Act Filing”) with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with each of (i) a preliminary and a final private placement memorandum or offering circular or (ii) a preliminary and final prospectus or prospectus supplement, as applicable (collectively, the Securitization“Offering Materials”), an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum or prospectus, includingas applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyCollateral,” “The Manager,” “The Mortgage Borrower,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested to the extent such information relates the same relate to or includes any Provided Information or any information regarding the PropertiesLoan, Borrowerthe Loan Documents, Mortgage Borrower, Borrower, Guarantor, Indemnitor, Principals or an Affiliate of any of the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”foregoing) do not (and with respect to any portion of the Offering Materials prepared in reliance on the reports of third-parties, to the best of Borrower’s knowledge, do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder ▇▇▇▇▇▇ Brothers Inc. (“▇▇▇▇▇▇”) that has filed any the registration statement statement, if any, relating to the Securitization or has acted as securitization (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons▇▇▇▇▇▇ Group”), and ▇▇▇▇▇▇, each of its directors and each Person who controls ▇▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (other than such statement or misstatement made in Borrower’s good faith reliance upon the Covered Disclosure Information reports of third parties that do not to the best of Borrower’s knowledge, contain any untrue statement or misstatement or a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading) or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and ▇▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise loss claim, damage or liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower and Mortgage Borrower, operating statements statements, rent rolls, environmental site assessment reports and rent rolls property condition reports with respect to the Properties)Property and valuations of Collateral but excluding any projections made in good faith by Borrower; and provided that this Section 9.2 shall not apply to any loss, claim, damage or liability to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with written information furnished to Borrower by Lender, any member of the ▇▇▇▇▇▇ Group or any member of the Underwriter Group expressly for use in the Offering Materials unless Borrower, Principals or Indemnitor fails to correct any such untrue statement, misstatement or omission with respect to Borrower, Mortgage Borrower, Principals or Indemnitor that is known to Borrower, Principals or Indemnitor or that, with the exercise of customary reasonable efforts, should be known to Borrower, Principals or Indemnitor. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, preliminary Offering Materials shall not inure to the benefit of any member of the ▇▇▇▇▇▇ Group or the Underwriting Group (or any person controlling such ▇▇▇▇▇▇ Group or Underwriting Group) from whom the Person asserting any such loss, liability, claim, damage or expense purchased any of the securities which are the subject thereof if Borrower be liable for Liabilities arising shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from information contained in a Disclosure Document the fact that such Person was not provided to Borrower for comment with a copy of the final Offering Materials at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damage or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Offering Materials that was corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Offering Materials. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses Clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons ▇▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made not misleading (other than any such statement, misstatement or omission made in reliance upon the reports of third parties that do not, to the best of Borrower’s knowledge, contain any untrue statement or misstatement, of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading misleading) and (ii) reimburse each Indemnified Person Lender, the ▇▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities. The foregoing indemnity shall not apply with respect to any Liabilities that arise out of or are based upon any untrue statement, misstatement or omission or any alleged untrue statement, misstatement or omission to state in the Provided Information a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading, if such untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission related to statements of information that do not accurately reflect Provided Information or any corrections or updates to Provided Information which were provided prior to the delivery of the final Offering Materials to investors and none of Borrower, Principals or Indemnitor has been given reasonable opportunity to review the proposed filing under the Exchange Act and to correct such untrue statement, misstatement or omission. In no event shall the indemnification, contribution or reimbursement obligations of Borrower under this Section 9.2 apply to any filings made under the Exchange Act after the initial filings, if any, are made.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified ▇▇▇▇▇ in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Personsindemnified party to parties. The Indemnified Person shall instruct its have the right to employ separate counsel in any such action and to maintain reasonably detailed billing records for participate in the defense thereof but the fees and disbursements for which expenses of such counsel shall be at the expense of such Indemnified Person is seeking reimbursement hereunder unless: (i) the employment thereof has been specifically authorized by Borrower in writing; or (ii) in such claims or action there is, in the reasonable opinion of independent counsel, a conflict concerning any material issue between the position of Borrower and such Indemnified Person, in which case if such Indemnified Person notifies Borrower in writing that it elects to employ separate counsel at the expense of Borrower, then such counsel shall submit copies of such detailed billing records have the right to substantiate that such counsel’s fees and disbursements are solely related to assume the defense of a claim for which Borrower is required hereunder to indemnify such action on behalf of such Indemnified Person. ; provided, however, that unless, in the reasonable opinion of independent counsel, an actual or potential conflict exists between two or more Indemnified Persons, Borrower shall not be liable for required to pay the expenses fees and disbursements of more than one (1) such separate counsel unless such for all Indemnified Persons. Nothing set forth herein is intended to or shall impair the right of any Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personretain separate counsel at its own expense.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnity agreements provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the Liabilities for which amount paid or payable by the indemnified party as a result of such indemnification losses, claims, damages or reimbursement is held unavailable liabilities (or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) ▇▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (ai) Borrower understands that certain of the Provided Information may be included in Disclosure Documents and each Guarantor agree to provide in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933each Disclosure Document, an indemnification certificate, as amended (the “Securities Act”set forth in Section 10.02(d)(ii), or the Securities and Exchange Act of 1934indemnifying Lender, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securitiesany Issuer Person, the Rating AgenciesIssuer Group and/or the Underwriter Group (as those terms are defined in Section 10.02(d)(vii)) (each, an “Indemnified Party,” and service providers relating collectively “Indemnified Parties”) for any losses to which any Indemnified Party may become subject under the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note conditions set forth in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionthis Section.
(bii) Borrower agrees to provide, in connection with the Securitization, an The indemnification agreement (i) certifying that certificate will provide that
(A) Borrower has and each Guarantor have carefully examined those sections of the Disclosure DocumentsDocuments relating to the following:
(1) Borrower, includingany SPE Equity Owner, without limitationany operator of the Facility, any Guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (“Borrower Information”).
(2) The sections entitled “Risk Factors,” “Special Considerations,” and/or “Description of the CollateralRisk Factors,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such or similar sections and such other information in the Disclosure Documents (but only to the extent such information relates sections specifically refer to or includes any Provided Borrower Information or any information regarding (“Borrower Information Sections”).
(B) To the Properties, best of Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively ’s and each Guarantor’s knowledge with the Provided regard to Borrower Information, the “Covered Disclosure Information”) Borrower Information Sections do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is . Notwithstanding the Lender)foregoing, any Affiliate indemnification certificate may expressly exclude any information contained in third party reports prepared by parties that are not Affiliates of JPM Borrower or a Noteholder that has filed of any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act Guarantor (collectively, the “Indemnified PersonsThird Party Information”), and the obligations and liability of Borrower and any Guarantor pursuant to this Section will not extend to the Third Party Information.
(iii) Borrower’s and each Guarantor’s agreement to indemnify the Indemnified Parties for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) losses to which any such Indemnified Person Party may become subject insofar as the Liabilities will extend only to such losses that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents or arise out of or are based upon the omission or alleged omission to state in the Covered Borrower Information or the Borrower Information Sections of the Disclosure Information Documents a material fact required to be stated therein or in such sections necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading (collectively, “Securities Liabilities”).
(iv) Borrower and (iii) agreeing each Guarantor agrees to reimburse each any Indemnified Person Party for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Party in connection with investigating or defending the Liabilities providedSecurities Liabilities. (v) The indemnitors will be liable under Section 10.02(d) (ii), however, that Borrower shall have liability with respect to Liabilities arising out of (iii) or based upon the Covered Disclosure Information (iv) only to the extent that such Securities Liabilities arise out of of, or are based upon upon, any such untrue statement or omission made in the Covered Disclosure Information Documents in reliance upon upon, and in conformity with information with, Borrower Information furnished to Lender or such Noteholder any Indemnified Party by or on behalf of Borrower or a Guarantor in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (Loan, including without limitation financial statements of Borrower Borrower, any SPE Equity Owner, any Guarantor or any operator of the Facility, and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is providedMortgaged Property.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Seniors Housing Loan and Security Agreement (Care Investment Trust Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “"Securities Act”"), or the Securities and Exchange Act of 1934, as amended (the “"Exchange Act”"), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document with respect to the Loan accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (the "Indemnification Agreement") (i) certifying that (A) Borrower has the Indemnifying Persons have carefully examined the Disclosure Documents, including, without limitation, including the sections entitled “"Risk Factors,” “" "Special Considerations,” “Consideration", "Description of the Collateral,” “" "Description of the Mezzanine Loans,” “The Operating Company,” “" "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” " and (B) such sections and such other information in the Disclosure Documents (only to the extent such information relates to or includes any Provided Information or any information regarding specific to the PropertiesLoan, the Loan Documents, Borrower, Mortgage Borrower, Maryland Owner, the Collateral, the Senior Mezzanine Collateral and/or Property, Master Tenant, Operator, Guarantor and the Master Lease and the Operating CompanyLease) (collectively with the Provided Information, the “"Covered Disclosure Information”") do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each NoteholderJPMorgan, JPM (whether CS, BofA, or not it is the Lender), any Affiliate of JPM Lender, JPMorgan, CS or a Noteholder BofA that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, or any Affiliate of JPM Lender, JPMorgan, CS or a Noteholder BofA that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “"Indemnified Persons”"), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, including reasonable legal fees and expenses for enforcement of these obligations (collectively, the “"Liabilities”")) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Liabilities. This indemnity agreement will be in addition to any liability which Borrower may otherwise havehave pursuant to the Loan Documents or applicable law. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above Indemnification Agreement is provided.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any reasonable legal fees or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrowerany Indemnifying Person, notify Borrower such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower any Indemnifying Person thereof, Borrower such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person and shall have the right to negotiate and enter into and/or consent to any settlement, subject to the prior approval of Lender and, if different, the Indemnified Person. After notice from any Borrower Indemnifying Person to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borroweran Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrowerthe Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s 's fees and disbursements are solely related to the defense of a claim for which Borrower the Indemnifying Person is required hereunder to indemnify such Indemnified Person. Borrower No Indemnifying Person shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person Lender, JPMorgan, CS and BofA (in question (each case which consent shall not be unreasonably withheld), Borrower no Indemnifying Person shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the Indemnifying Person shall have given such Indemnified Person Lender, JPMorgan, CS and BofA, as applicable, reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, Borrower such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) Borrower agrees The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (xi) in such proportion as is appropriate to reflect the relative benefits to Borrowerthe Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (yii) if the allocation provided by clause (xi) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (xi) but also the relative faults of Borrowerthe Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) proceeds actually received by the Indemnified Persons in connection with the closing sale of the Loan or portion thereof pursuant to the Securitization.
(g) Borrower agrees The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower The Indemnifying Persons further agrees agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall not have no any obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Hcp, Inc.)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has the Indemnifying Persons Table of Contents have carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansLoan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Collateral, the Properties, Borrower, Mortgage BorrowerGuarantor, ▇▇▇▇▇▇ Cushion Entity, Manager and the CollateralManager, Franchisor and/or the Senior Mezzanine Collateral and/or Operating Company) Loan), other than information regarding other loans and assets in a pool of loans which includes the Loan (collectively with the Provided Information, the “Covered Disclosure Information”) do not (and with respect to any portion of the Disclosure Documents prepared in reliance on the reports of third parties, to the best of their knowledge do not) contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, a placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-co- placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing other than a statement or omission based upon the reports of third parties that do not to reimburse each Indemnified Person for their knowledge contain any legal untrue statement or other expenses incurred by such Indemnified Person, as they are incurredomission of a material fact necessary in order to make the statements made, in connection with investigating or defending light of the Liabilities circumstances under which they were made, not misleading) provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information Indemnified Persons will be liable in any case above but only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information thereon in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower and its Affiliates in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Securitization, including, without limitation limitation, financial statements of Borrower or its Affiliates, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties)Properties (other than third party reports which to the Borrower’s knowledge do not contain any untrue statement or omission of a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading) but excluding any projections made in good faith by Borrower or its Affiliates; and provided that this Section shall not apply to any Liabilities to the extent arising out of any untrue statement, misstatement or omission or alleged untrue statement, misstatement or omission made in reliance upon and in no event connection with the written information furnished to Borrower or its Affiliates by Lender or any Indemnified Person expressly for use in the Disclosure Documents unless Borrower or Guarantor fails to correct any such untrue statement, Table of Contents misstatement or omission that is known to Borrower or Guarantor or that, with the exercise of customary reasonable efforts, should be known to Borrower or Guarantor and (iii) agreeing to reimburse each Indemnified Person for any legal or other out-of-pocket expenses reasonably incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities. The foregoing indemnity with respect to any untrue statement or misstatement contained in, or omission from, Disclosure Documents shall not inure to the benefit of any Indemnified Person if Borrower be liable for Liabilities arising or its Affiliates shall sustain the burden of proving that any such loss, liability, claim, damage or expense resulted from information contained in the fact that a Disclosure Document that Person was not provided to Borrower for comment with a copy of the final Disclosure Documents at least five (5) Business Days or prior to its dissemination the written confirmation of the sale of such securities to such Person and the loss, liability, claim, damager or on which Borrower provided comments to Lender expense resulted from an untrue statement or misstatement contained in, or omission from, the preliminary Disclosure Documents that were corrected in writing and Lender failed to incorporate such comments (assuming such comments were accurate)the final Disclosure Documents. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Wyndham International Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including a prospectus, a private placement memorandum or a public registration statement (each, a " Disclosure Document") and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will reasonably cooperate with the holder of the Note Lender in updating the Provided Information for inclusion or summary in the Disclosure Document by providing all current information pertaining to Borrower and the Properties necessary to keep the Disclosure Document accurate and complete in all material respects with respect to the extent in Borrower’s possession.
such matters. In connection with each of (bx) Borrower a preliminary and a private placement memorandum or (y) a preliminary and final prospectus, as applicable, B▇▇▇▇▇▇▇ agrees to provide, in connection with the Securitization, provide an indemnification agreement (i) certificate: certifying that (A) such Borrower has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to such Borrower, the Disclosure Documents, including, without limitation, Property and the Loan including applicable portions of the sections entitled “Risk Factors,” “"Special Considerations,” “", "Description of the Collateral,” “Mortgages", "Description of the Mezzanine Loans,” “Mortgage Loans and Mortgaged Properties", "The Operating Company,” “Manager", "The Borrower” " and “"Certain Legal Aspects of the Mezzanine Loans,” Mortgage Loan", and (B) such sections (and such any other information in the Disclosure Documents (sections reasonably requested and pertaining to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the CollateralProperties or the Loan) insofar as such sections relate to Borrower, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided InformationManaging Members, the “Covered Disclosure Information”) Property Manager or the Mortgaged Property do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; indemnifying Lender and the affiliates of Deutsche Bank Securities Inc. (collectively, (ii"DBS") indemnifying Lender, each Noteholder, JPM (whether or not it is that have filed the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement Disclosure Document relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Disclosure Document and each Person person or entity who controls any such Person DBS within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”"DBS Group"), and DBS, together with the DBS Group and each of their respective directors and each person who controls DBS or the DBS Group, within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the " Underwriter Group") for any losses, claims, damages, liabilities, costs damages or expenses liabilities (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “"Liabilities”)") to which any such Indemnified Person member of the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information information supplied by Borrower applicable to Borrower, the Property or the Loan, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in the applicable portions of such sections or necessary in order to make the statements in the Covered Disclosure Information, applicable portions of such sections or in light of the circumstances under which they were made, not misleading misleading; and (iii) agreeing to reimburse each Indemnified Person the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, the Underwriter Group in connection with investigating or defending the Liabilities provided, however, that Borrower Liabilities. B▇▇▇▇▇▇▇'s Liability under subparagraphs (i) and (ii) above and this subparagraph (iii) shall have liability with respect be limited to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of those portions of the Disclosure Documents memorandum or prospectus pertaining to Borrower, the Property or the Loan or in connection with the underwriting or the closing of the Loan (debt, including without limitation financial statements of Borrower B▇▇▇▇▇▇▇, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)Property. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything the DBS Group's and B▇▇▇▇▇▇▇'s relative knowledge and access to information concerning the contrary contained herein, Borrower shall have no obligation to act as depositor matter with respect to which claim was asserted; (ii) the Loan opportunity to correct and prevent any statement or an issuer omission; and (iii) any other equitable considerations appropriate in the circumstances. L▇▇▇▇▇ and B▇▇▇▇▇▇▇ hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or registrant with respect to per capita allocation that does not take into account the Securities issued in any Securitizationpreceding consideration.
Appears in 1 contract
Sources: Secured Indebtedness Agreement (Parkway Properties Inc)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents disclosure documents in connection with the Securitization Securitization, including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering circular or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possessionrespects.
(b) Borrower agrees to provide, provide in connection with the Securitizationeach of (i) a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement, as applicable, or (iii) collateral and structured term sheets or similar materials, an indemnification agreement certificate (iA) certifying that (A) Borrower has carefully examined the Disclosure Documentssuch memorandum, includingprospectus or term sheets, as applicable, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating CompanyManager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections (and such any other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying LenderLender (and for purposes of this Section 9.2, each Noteholder, JPM (whether or not it is the LenderLender hereunder shall include its officers and directors), any the Affiliate of JPM or a Noteholder L▇▇▇▇▇ Brothers Inc. (“L▇▇▇▇▇”) that has filed any the registration statement relating to the Securitization or has acted as (the sponsor or depositor in connection with the Securitization“Registration Statement”), any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, its directors, partners, employees, representatives, agents and Affiliates each of its officers who have signed the Registration Statement and each Person or entity who controls any such Person the Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsL▇▇▇▇▇ Group”), and L▇▇▇▇▇, each of its directors and each Person who controls L▇▇▇▇▇ within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any losses, claims, damages, liabilities, costs damages or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations liabilities (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information such sections described in clause (A) above, or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information therein a material fact required to be stated therein in such sections or necessary in order to make the statements in the Covered Disclosure Information, such sections or in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group and the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Lender and L▇▇▇▇▇ in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise Liability arises out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents memorandum or prospectus or in connection with the underwriting or the closing of the Loan (including debt, including, without limitation limitation, financial statements of Borrower Borrower, operating statements, rent rolls, environmental site assessment reports and operating statements and rent rolls property condition reports with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement indemnification will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (iiiC) above shall be effective whether or not an indemnification agreement certificate described in clause (iA) above is providedprovided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act (if any)Act, Borrower agrees to indemnify (i) Lender, the Indemnified Persons L▇▇▇▇▇ Group and the Underwriter Group for Liabilities to which any such Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Provided Information a material fact required to be stated therein or necessary in the Provided Information in order to make the statements in the Covered Disclosure Provided Information, in light of the circumstances under which they were made, made not misleading and (ii) reimburse each Indemnified Person Lender, the L▇▇▇▇▇ Group or the Underwriter Group for any legal or other expenses reasonably incurred by such Indemnified PersonsLender, as they are incurred, the L▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person of its election to assume such indemnified party under this Section 9.2 the defense of such claim or action, Borrower indemnifying party shall not be liable to the Indemnified Person responsible for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentenceother than reasonable costs of investigation; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition additional to those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person indemnified party or Personsparties. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower indemnifying party shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person an indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Personindemnified party.
(e) Without In order to provide for just and equitable contribution in circumstances in which the prior consent of the Indemnified Person indemnifications provided for in question Section 9.2(b) or (which consent shall not c) is or are for any reason held to be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding unenforceable by an indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which indemnification may would otherwise be sought hereunder indemnifiable under Section 9.2(b) or (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) L▇▇▇▇▇’▇ and Borrower’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (U-Store-It Trust)
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent in Borrower’s possession.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the CollateralMortgages,” “Description of the Mezzanine LoansMortgage Loans and Mortgaged Property,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine LoansMortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral Borrower and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made in the Covered Disclosure Information in reliance upon and in conformity with information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including without limitation financial statements of Borrower and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) Without the prior consent of the Indemnified Person in question (which consent shall not be unreasonably withheld), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld).
(f) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents in connection with the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Approved Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects to the extent such information is in Borrower’s possessionpossession or control.
(b) Borrower agrees to provide, in connection with the Securitization, an indemnification agreement (iA) certifying that (Ai) Borrower has carefully examined the Covered Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,” Information and (Bii) such sections and such other information in the Disclosure Documents (to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”) do Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying Lender, each Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitizationagent, any other co-underwriters, underwriters or co-placement agents or co-initial purchasers of Securities issued in the Securitizationagents, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who controls Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, including without limitation, limitation legal fees and expenses for enforcement of these obligations obligations) (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iiiC) agreeing to reimburse each Indemnified Person for any legal or other expenses reasonably incurred by such Indemnified Person, as they are incurred, Person in connection with investigating or defending the Liabilities Liabilities; provided, however, that Borrower shall have liability with respect to Liabilities arising out of will be liable in any such case under clauses (B) or based upon the Covered Disclosure Information (C) above only to the extent that any such Liabilities arise out of or are is based upon any such untrue statement or omission made in the Covered Disclosure Information therein in reliance upon and in conformity with (1) the written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting or the closing of the Loan (including Loan, including, without limitation limitation, financial statements of Borrower and Borrower, operating statements and rent rolls with respect to the Properties), Properties and (2) those portions of the Disclosure Documents furnished to and approved by Borrower in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided the certificate furnished pursuant to Borrower for comment at least five clause (5A) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate such comments (assuming such comments were accurate)above. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (iiiC) above shall be effective effective, valid and binding obligations of Borrower, whether or not an indemnification agreement described in clause (iA) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against Borrower, notify Borrower in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 8.2 except to the extent that it has been materially prejudiced by such failure and, provided, further, provided further that the failure to notify Borrower shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.28.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify Borrower thereof, Borrower shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Borrower to an the Indemnified Person of its election to assume the defense of such claim or action, Borrower shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both Borrower, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to Borrower, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(ed) Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless Borrower shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedingsproceedings and such settlement requires no statement as to, or an admission of, fault, culpability or a failure to act, by or on behalf of each Indemnified Person. As long as Borrower has complied with its obligations to defend and indemnify hereunder, Borrower shall not be liable for any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheldwithheld or delayed).
(fe) Borrower agrees that if any indemnification or reimbursement sought pursuant to this Section 9.2 8.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.28.2), then Borrower, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to Borrower, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.28.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph Section 8.2(e) exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the SecuritizationLoan.
(gf) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 8.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.28.2.
(h) The liabilities and obligations of the Indemnified Persons and Borrower under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in Disclosure Documents preliminary and final disclosure documents in connection with the Securitization any Secondary Market Transaction, including a Securitization, including an offering circular, a prospectus, prospectus supplement, private placement memorandum or other offering document (each, a “Disclosure Document”) and may also be included in filings with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or and may be made available to investors or prospective investors in the Securities, the Rating Agenciesinvestment banking firms, NRSROs, accounting firms, law firms and other third-party advisory and service providers relating to the any Secondary Market Transaction, including a Securitization. In the event Borrower also understands that the Disclosure Document is required to findings and conclusions of any third-party due diligence report obtained by the Lender, the Issuer or the Securitization placement agent or underwriter may be revised prior to made publicly available if required, and in the sale of all Securitiesmanner prescribed, Borrower will cooperate with the holder by Section 15E(s)(4)(A) of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate Exchange Act and complete in all material respects to the extent in Borrower’s possessionany rules promulgated thereunder.
(b) In connection with each of (x) a preliminary and final private placement memorandum, or (y) a preliminary and final prospectus, as applicable, Borrower agrees to provide, in connection with the Securitizationat Lender’s reasonable request, an indemnification agreement certificate (at no cost to Borrower except as provided in Section 9.4):
(i) certifying that (A) Borrower has carefully examined the Disclosure Documentsthose portions of such memorandum or prospectus, includingas applicable, without limitationreasonably designated in writing by Lender for Borrower’s review pertaining to Borrower, Manager, the sections entitled “Risk Factors,” “Special Considerations,” “Description of Property and/or the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” Provided Information and “Certain Legal Aspects of the Mezzanine Loans,” and (B) insofar as such sections and or portions thereof specifically pertain to Borrower, Guarantor, Manager, the Property or the Provided Information (such other information in portions, the Disclosure Documents “Relevant Portions”), the Relevant Portions do not (except to the extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively specified by Borrower if Borrower does not agree with the Provided Informationstatements therein), as of the “Covered Disclosure Information”) do not date of such certificate, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, .
(ii) indemnifying LenderLender (and for purposes of this Section 9.2, each NoteholderLender shall include the initial lender, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or a Noteholder that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitizationits successors and assigns, and each of their respective officers, officers and directors, partners, employees, representatives, agents and Affiliates ) and each Person or entity who controls any such Person the Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified PersonsLender Group”), the issuer of the Securities (the “Issuer” and for purposes of this Section 9.2, Issuer shall include its officers, directors and each Person who controls the Issuer within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and any placement agent or underwriter with respect to the Securitization, each of their respective officers and directors and each Person who controls the placement agent or underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act 115 (collectively, the “Underwriter Group”) for any actual out-of-pocket losses, third-party claims, damages or liabilities arising out of third party claims (excluding lost profits, diminution in value and other consequential damages, liabilities, costs or expenses (including, without limitation, legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person Lender, the Underwriter Group, the Lender Group or the Issuer may become subject insofar as the Liabilities arise out of of, or are based upon upon, (A) any untrue statement or alleged untrue statement of any material fact contained in the Relevant Portions or in the Provided Information provided to Lender by Borrower and its agents, counsel and representatives, except to the extent that such untrue statement is subsequently superseded or corrected prior to its inclusion in the Disclosure Document or (B) the omission or alleged omission to state in the Relevant Portion, a material fact required to be stated in such Relevant Portion or necessary in order to make the statements in such information, in light of the circumstances under which they were made, not misleading. Borrower also agrees to reimburse Lender, the Lender Group, the Issuer and/or the Underwriter Group for any legal or other out-of-pocket expenses reasonably incurred by Lender, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the Liabilities. Borrower’s liability under this Section 9.2(b)(ii) will be limited to Liability that arises out of, or is based upon, an untrue statement or omission made in reasonable reliance upon, and in conformity with, information furnished to Lender by or on behalf of Borrower in connection with the preparation of the Disclosure Document or in connection with the Relevant Portions or the Provided Information and shall not include any Liability that arises out of the willful misconduct, gross negligence or fraud of the indemnified party. This indemnification provision will be in addition to any liability which Borrower may otherwise have.
(c) Borrower shall indemnify the Lender, the Underwriter Group, the Lender Group, and the Issuer for Liabilities to which any such indemnified party may become subject insofar as the Liabilities are in connection with any indemnification to the Rating Agencies in connection with the issuing, monitoring or maintaining ratings on the Securities insofar as the liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by Borrower or Borrower’s agents or representatives (but expressly excluding Lender and its agents and representatives) to the Rating Agencies (the “Covered Disclosure Information Rating Agency Information”) or arise out of or are based upon the omission or alleged omission to state a material fact in the Covered Disclosure Rating Agency Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Rating Agency Information, in light of the circumstances under which they were made, not misleading misleading. Notwithstanding anything to the contrary contained herein, (i) Borrower shall not be responsible for any Liabilities relating to untrue statements or omissions in any Covered Rating Agency Information which Borrower provided notice to Lender in writing prior to the pricing of any Securities; and (iiiii) agreeing to reimburse each Indemnified Person Borrower shall not be liable for any legal misstatements or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities provided, however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information only to the extent that such Liabilities arise out of or are based upon any such untrue statement or omission made omissions in the Covered Disclosure Rating Agency Information in reliance upon and in conformity with resulting from Lender’s failure to accurately transcribe written information furnished to Lender or such Noteholder by or on behalf of Borrower in connection with the preparation of the Disclosure Documents or in connection with the underwriting to Lender unless Borrower was provided a reasonable opportunity to review such Covered Rating Agency Information (or the closing of the Loan (including without limitation financial statements of Borrower applicable portions thereof) and operating statements and rent rolls with respect to the Properties), and in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days prior to its dissemination or on which Borrower provided comments to Lender in writing and Lender failed to incorporate notify Lender of such comments (assuming such comments were accurate). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective whether misstatements or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with filings under the Exchange Act (if any), Borrower agrees to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilitiesomissions.
(d) Promptly after receipt by an Indemnified Person indemnified party under this Section 9.2 of 116 notice of any claim or the commencement of any action, the Indemnified Person shallsuch indemnified party will, if a claim in respect thereof is to be made against Borrowerthe indemnifying party under this Section 9.2, notify Borrower the indemnifying party in writing of the claim or commencement thereof, but the commencement of that action; provided, however, that omission to so notify the failure to notify Borrower shall indemnifying party will not relieve it the indemnifying party from any liability which it the indemnifying party may have under the indemnification provisions of this Section 9.2 to any indemnified party hereunder except to the extent that it has been materially prejudiced by such failure and, provided, further, that the failure to notify Borrower shall not relieve it from causes prejudice to the indemnifying party. In the event that any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be is brought against an Indemnified Personany indemnified party, and it shall notify Borrower notifies the indemnifying party of the commencement thereof, Borrower shall the indemnifying party will be entitled entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it wishes(or they) may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Personsuch indemnified party. After notice from any Borrower the indemnifying party to an Indemnified Person such indemnified party under this Section 9.2 of its election to assume the defense assumption of such claim or actiondefense, Borrower the indemnifying party shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person such indemnified party in connection with the defense thereof except as provided in the following sentencethereof; provided, however, if the defendants in any such action include both Borrower, on the one hand, indemnified party and one or more Indemnified Persons on the other hand, indemnifying party and an Indemnified Person the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons indemnified parties that are different from or in addition to conflict with those available to Borrowerthe indemnifying party, the Indemnified Person indemnified party or Persons parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which Borrower is required hereunder to indemnify such Indemnified Person. Borrower shall not be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to another Indemnified Person.
(e) the indemnifying party. Without the prior written consent of the Indemnified Person in question Lender (which consent shall not be unreasonably withheldwithheld or delayed), Borrower no indemnifying party shall not settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person indemnified party is an actual or potential party to such claim, action, suit or proceeding) unless Borrower the indemnifying party shall have given such Indemnified Person Lender reasonable prior written notice thereof and shall have obtained an unconditional release of each Indemnified Person indemnified party hereunder from all liability arising out of such claim, action, suit or proceedings. As long as Borrower has complied proceedings with its obligations to defend and indemnify hereunder, Borrower shall not be liable for no admission of fault by or on behalf of any settlement made by any Indemnified Person without the consent of Borrower (which consent shall not be unreasonably withheld)indemnified party.
(fe) Borrower agrees that if any indemnification In order to provide for just and equitable contribution in circumstances in which the indemnity provided for in Section 9.2(b) or reimbursement sought pursuant to this Section 9.2 (c) is finally judicially determined to be unavailable for any reason held to be unenforceable as to an indemnified party in respect of any Liabilities (or is insufficient action in respect thereof) referred to hold any Indemnified Person harmless therein which would otherwise be indemnifiable under Section 9.2(b) or (with respect only to the Liabilities that are the subject of this Section 9.2c), then Borrower, on the one hand, and such Indemnified Person, on the other hand, indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities for which such indemnification (or reimbursement is held unavailable or is insufficient: (x) action in such proportion as is appropriate to reflect the relative benefits to Borrowerrespect thereof); provided, on the one handhowever, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults that no Person guilty of Borrower, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any other party Person who is was not also found liable for guilty of such fraudulent misrepresentation, and (B) Borrower agrees that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed . In determining the amount of contribution to which the fees respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; (iii) the limited responsibilities and obligations of Borrower as specified herein; and (iv) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by underwriting discount pro rata or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitizationper capita allocation.
(g) Borrower agrees that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. Borrower further agrees that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(hf) The liabilities and obligations of the Indemnified Persons both Borrower and Borrower Lender under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of 117 the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)