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 ~~9.2~~9.10. 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 ~~9.2~~9.10), 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 ~~9.2~~9.10, (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 ~~9.2~~9.10. (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~~ 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, ~~Borrower~~the 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 Lender~~Lender 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 ~~Information~~Document, 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 (~~iii~~ii) ~~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 Person~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 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~~respects. (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~~Mortgages,” “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 (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, (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 (~~iii~~C) 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 (~~iii~~C) 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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~~Loan. (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 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 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 ~~Documents~~Document, ~~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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Lender 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 Information~~such 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 (~~iii~~y) 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 Person~~Lender, ~~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~~ 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 possession~~respects. (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 ~~Securitization~~Property 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 Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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 ~~Lender~~Lender (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 officers~~any 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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. (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 possession~~respects. (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 Collateral~~any Mortgage Loan Party, the ~~Senior~~ Loan, the Mortgage Loan and/or the Other Mezzanine ~~Collateral and/or Operating Company~~Loan) (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 (~~iii~~C) 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 (~~iii~~C) 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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~~proceedings 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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 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 possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 Documents~~such memorandum or prospectus, ~~including~~as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “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 ~~(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 ~~Lender~~Lender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), each ~~Noteholder~~of 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 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 (collectively~~liabilities 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~thereof; 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 ~~Borrower~~the 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 Persons~~indemnified 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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. (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 1933~~each 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 1934~~indemnifying Lender, ~~as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities~~any Issuer Person, the ~~Rating Agencies~~Issuer 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 possession~~this 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 ~~Documents~~Documents relating to the following: (1) Borrower, ~~including~~any SPE Equity Owner, ~~without limitation~~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 Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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 Persons~~Third 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 provided~~Securities 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 (i~~this 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~~ 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 possession~~Property and the Operating Tenant. (b) Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 limitation~~factual 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 ~~Collateral~~Guarantor, 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~defense 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 misrepresentation~~equitable 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 Securitization~~per 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~~ 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 possession~~respects. (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 Company~~Information) (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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~proceedings~~proceeding. 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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~~Obligations. (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~~ 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 possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 Documents~~such memorandum, ~~including~~prospectus or term sheets, as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “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 ~~(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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~L▇▇▇▇▇ 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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) 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 possession~~respects. (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 ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans,” “The Operating Company~~Mortgage 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 Borrower~~any Master Tenant, any Lineage Subtenant, Sole Member, Guarantor 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 (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 ~~Person~~Party, 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 made~~foregoing 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; provided~~Loan, ~~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 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~~respects. (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~~Mortgages,” “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 (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~~Property, 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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) 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 possession~~such 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~~ 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 possession~~respects. (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 ~~Securitization~~Property 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 Documents~~Property and/or the Loan), ~~including~~as 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 ~~Lender~~Lender (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 officers~~any 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,~~ made not misleading and (~~iii~~ii) ~~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 Person~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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~~ 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 possession~~respects. (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 ~~Securitization~~Property 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 Documents~~Property and/or the Loan), ~~including~~as 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 Loans~~Mortgage 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 ~~Lender~~Lender (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 officers~~any 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 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 Securities~~Property, ~~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 possession~~absolute 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 ~~Documents~~Documents specified by Lender and that to Borrower’s actual knowledge, ~~including~~each such Disclosure Document, ~~without limitation~~as 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Lender 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 ~~otherwise~~omission; and (iii) ~~actually received by~~ any other equitable considerations appropriate in the ~~Indemnified Persons in connection with the closing of the Loan or the Securitization~~circumstances. (gf) ~~Borrower agrees that~~ Subject to the ~~indemnification~~provisions 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) 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 possession~~respects. (b) ~~Borrower agrees to provide~~Upon 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 limitation~~Loan 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 Borrower~~the IP, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, 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 Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) 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 (~~iii~~C) 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 Information~~Loan 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 ~~Information~~Document, 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 ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers 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 wishes~~they 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 sentence~~other 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 ~~Borrower~~Borrowers, 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 Persons~~Person(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 ~~proceedings~~proceeding. 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 ~~9.2~~9.3), then ~~Borrower~~Borrowers, 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~~Borrowers, 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~~Borrowers, 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 ~~9.2~~9.3, ~~(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 ~~9.2~~9.3. (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~~ 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 possession~~respects. (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 ~~Securitization~~Properties 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 Documents~~Properties and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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 Information~~and any other sections reasonably requested by Lender (collectively, 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 ~~Lender~~Lender (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 officers~~any 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~~ 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 possession~~respects. (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 ~~Securitization~~Properties 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 Documents~~Properties and/or the Loan), ~~including~~as applicable, ~~without limitation~~relating 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 ~~Lender~~Lender (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 officers~~any 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 (~~iii~~C) 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 (~~iii~~C) 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 Persons~~Lender, ~~as they are incurred,~~ the Issuer Group or the Underwriter Group in connection with defending or investigating the ~~Liabilities~~Securities 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 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 ~~Documents~~Documents specified by Lender and that to Borrower’s actual knowledge each such Disclosure Document, ~~including~~as it relates to Borrower, ~~without limitation~~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 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be he made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 ~~otherwise~~omission; and (iii) ~~actually received by~~ any other equitable considerations appropriate in the ~~Indemnified Persons in connection with the closing of the Loan or the Securitization~~circumstances. (gf) ~~Borrower agrees that~~ Subject to the ~~indemnification~~provisions 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)

Appears in 2 contracts

Sources: Loan Agreement (Urban Shopping Centers Inc), Loan Agreement (Urban Shopping Centers Inc)

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 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 possession~~respects. (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 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 ~~Securitization~~Provided 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 Documents~~Property and/or the Loan), ~~including~~as 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 Loans~~Mortgage 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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~~ 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, ~~Borrower~~the 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 Lender~~Lender 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 ~~Information~~Document, 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 (~~iii~~ii) ~~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 Person~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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~~ 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 Lender~~Section 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 and~~Lender 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 thereof~~on behalf of, Borrower ~~shall be entitled to participate therein and~~or 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~~ 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 possession~~respects. (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 ~~Securitization~~Property 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 Documents~~Property and/or the Loan), ~~including~~as applicable, including without limitation, the sections entitled “~~Risk Factors,” “~~Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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 ~~misleading~~misleading (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 ~~Lender~~Lender (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 officers~~any 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 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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~~ 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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) 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 ~~Securities~~Securities 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 possession~~respects. (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 ~~Persons~~Parties”), ) 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 Information~~such 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 provided~~Securitization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, ~~however~~obligation, 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 made~~Loan 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 ~~action~~action 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 action~~such 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 ~~Person~~Party, 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 ~~Person~~Party. 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 ~~action~~suit, 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 ~~Persons~~Parties. 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 ~~Person~~Party. 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 ~~Person~~Party. (e) Without the prior written consent of the applicable Securitization Indemnified ~~Person in question~~ Party (which consent shall not be unreasonably ~~withheld~~withheld 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 ~~proceedings~~proceeding. 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 ~~withheld~~withheld 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 ~~Person~~Party, 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 ~~Person~~Party, 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 ~~Persons~~Parties, 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 Securitization~~Loan. (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 ~~lawsuits~~claim, ~~claims~~ action, suit or ~~other proceedings~~proceeding. 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 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 possession~~such 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 ~~Collateral~~Properties 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 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, ~~Borrower~~the 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 Lender~~Lender 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 ~~Information~~Document, 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 (~~iii~~ii) ~~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 Person~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 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 ~~possession~~possession 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 Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, 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 ~~9.2~~8.2. 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 ~~withheld~~withheld 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 ~~proceedings~~proceedings 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 ~~withheld~~withheld 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 ~~9.2~~8.2), 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 ~~9.2~~8.2, (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 Securitization~~Loan. (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 ~~9.2~~8.2. (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 ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loans and Mortgaged Property,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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 Borrower~~Principal, Holdings, the ~~Collateral,~~ Operating Company and 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) 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 ~~9.2~~9.10. 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 ~~9.2~~9.10), 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 ~~9.2~~9.10, (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 ~~9.2~~9.10. (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 possession~~respects. (b) ~~Borrower agrees to provide~~Upon 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 limitation~~Loan 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~~the IP, ~~Mortgage Borrower~~the First Mezzanine Collateral, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, 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 Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) 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 (~~iii~~C) 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 Information~~Loan 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 ~~Information~~Document, 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 ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers 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 wishes~~they 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 sentence~~other 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 ~~Borrower~~Borrowers, 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 Persons~~Person(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 ~~proceedings~~proceeding. 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 ~~9.2~~9.3), then ~~Borrower~~Borrowers, 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~~Borrowers, 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~~Borrowers, 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 ~~9.2~~9.3, ~~(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 ~~9.2~~9.3. (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) ~~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 possession~~respects. (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 Company~~Information) (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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~proceedings~~proceeding. 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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~~Obligations. (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~~ 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 Agencies~~investment 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 Securities~~manner 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 possession~~any rules promulgated thereunder. (b) Borrower hereby agrees to ~~provide~~indemnify Agent (and for purposes of this Section 9.2, ~~in connection with~~ Agent shall include the ~~Securitization~~initial agent, ~~an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents~~initial 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 Persons~~Lender 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 (~~iii~~II) ~~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 Person~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, ~~however~~or 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. ~~Moreover~~Borrower 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~~deemed 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 made~~Disclosure 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 Persons~~Agent, ~~as they are incurred~~Lenders, 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 ~~withheld~~withheld 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 hereunder~~act, ~~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 9.2~~c), ~~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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~an 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) 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 possession~~respects. (b) ~~Borrower agrees to provide~~Upon 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 limitation~~Loan 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~~the IP, ~~Mortgage Borrower~~the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Managers, 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 Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) 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 (~~iii~~C) 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 Information~~Loan 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 ~~Information~~Document, 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 ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers 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 wishes~~they 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 sentence~~other 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 ~~Borrower~~Borrowers, 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 Persons~~Person(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 ~~proceedings~~proceeding. 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 ~~9.2~~9.3), then ~~Borrower~~Borrowers, 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~~Borrowers, 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~~Borrowers, 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 ~~9.2~~9.3, ~~(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 ~~9.2~~9.3. (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 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 Information~~preparation 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Lender 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 (~~iii~~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 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 ~~Information~~Document, 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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)

Appears in 2 contracts

Sources: Loan Agreement (Glimcher Realty Trust), Loan Agreement (Glimcher Realty 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 with respect to Borrower, Guarantor, the ~~extent in Borrower’s possession~~Property and the Operating Tenant. (b) Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 limitation~~factual 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 ~~Collateral~~Guarantor, 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~defense 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 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~~respects. (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~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~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~~ Collateral, the Properties, Borrower, Senior Mezzanine Borrower, Baltimore Owner, Guarantor, Mortgage Principal, Mortgage Borrower, Manager, the Loan, any other Mezzanine Loan and/or ~~Operating Company~~the 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 incurred~~omission 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 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 possession~~respects. (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 ~~Collateral~~Pledge 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 Borrower~~Property, the Collateral, the ~~Senior~~ First Mezzanine ~~Collateral~~ Collateral, Mortgage Borrower, Borrower, the First Mezzanine Borrower and/or ~~Operating Company~~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) jointly and severally indemnifying ~~Lender, each Noteholder, JPM~~ Lender (whether or not it is the ~~Lender~~Lender 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 ~~9.2~~12.1.6. 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 ~~9.2~~12.1.6), 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 ~~9.2~~12.1.6, (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 ~~9.2~~12.1.6. (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 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 ~~Securities~~Securities 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 possession~~respects. (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 ~~Persons~~Parties”), ) 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 Information~~such 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 provided~~Securitization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such liability, ~~however~~obligation, 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 made~~Loan 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 ~~action~~action 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 action~~such 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 ~~Person~~Party, 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 ~~Person~~Party. 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 ~~action~~suit, 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 ~~Persons~~Parties. 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 ~~Person~~Party. 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 ~~Person~~Party. (e) Without the prior written consent of the applicable Securitization Indemnified ~~Person in question~~ Party (which consent shall not be unreasonably ~~withheld~~withheld 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 ~~proceedings~~proceeding. 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 ~~withheld~~withheld 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 ~~Person~~Party, 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 ~~Person~~Party, 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 ~~Persons~~Parties, 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 Securitization~~Loan. (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 ~~lawsuits~~claim, ~~claims~~ action, suit or ~~other proceedings~~proceeding. 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 possession~~Property and the Operating Tenant. (b) Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 limitation~~factual 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 ~~Collateral~~Guarantor, 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~defense 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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~~ 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 ~~possession~~possession 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 Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, 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 ~~Borrower~~Parent, 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 ~~9.2~~8.2. 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 ~~Borrower~~Parent, 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~~Parent, 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 ~~withheld~~withheld 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 ~~proceedings~~proceedings 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 ~~withheld~~withheld 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 ~~9.2~~8.2), then ~~Borrower~~Parent, 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~~Parent, 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~~Parent, 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 ~~9.2~~8.2, (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 Securitization~~Loan. (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 ~~9.2~~8.2. (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 Agencies~~investment 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 Securities~~manner 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 possession~~any rules promulgated thereunder. (b) Borrower hereby agrees to ~~provide~~indemnify Agent (and for purposes of this Section 9.2, ~~in connection with~~ Agent shall include the ~~Securitization~~initial agent, ~~an indemnification agreement (i) certifying that (A) Borrower has carefully examined the Disclosure Documents~~initial 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 Persons~~Lender 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 (~~iii~~II) ~~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 Person~~Agent, ~~as they are incurred~~Lenders, the Lender Group, the Issuer and/or the Underwriter Group in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower’s liability under this paragraph will be limited to Liability that arises out of, ~~however~~or 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. ~~Moreover~~Borrower 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 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 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 reasonably cooperate with the holder of the Note in updating the Disclosure Document by providing all current available information or otherwise required under the Loan Documents necessary to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Upon Lender’s request, Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each of (i) a preliminary and a final 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 Documents~~such memorandum or prospectus, ~~including~~as applicable, 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 (specifically 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 and/or the Loan, ~~the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”)~~ and that such portions 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 Lender~~indemnifying, ~~each Noteholder, JPM~~ with respect to the final private placement memorandum or final prospectus (~~whether~~ or ~~not it is~~ the ~~Lender~~final private placement memorandum or final prospectus as supplemented), ~~any~~ as applicable, Lender (and for purposes of this Section 9.2, Lender hereunder shall include its officers and directors), the Affiliate of ~~JPM or a Noteholder~~ Greenwich Capital Markets, Inc. (“Greenwich”) 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~~Greenwich Group”), and Greenwich, each of its directors and each Person who controls Greenwich 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 but excluding any lost profits, ~~liabilities, costs or expenses (including, without limitation, legal fees~~ diminution in value and ~~expenses for enforcement of these obligations~~ consequential damages (collectively, the “Liabilities”)) to which ~~any such Indemnified Person~~ Lender, the Greenwich 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~~ portions of the disclosure document specifically pertaining to Borrower, the Property and/or the Loan (provided such portions have been reviewed and approved by Borrower) 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 (provided Borrower has examined and approved such portions) 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 (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Greenwich Group and the Underwriter Group for any reasonable legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ Lender and Greenwich 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~~ will be liable 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~~ Property (except that (x) Borrower’s obligations to indemnify in ~~no event shall Borrower be liable for Liabilities arising from~~ respect of any information contained in a ~~Disclosure Document~~ preliminary or final private placement memorandum or a preliminary or final prospectus that ~~was not~~ is derived in part from information provided by Borrower and in part from information provided by others, Borrower’s indemnification shall be limited to any untrue statement or alleged untrue statement therein or omission therefrom that results from information provided by Borrower ~~for comment at least five (5) Business Days prior to its dissemination or on~~ which Borrower ~~provided comments~~ has been given an opportunity to examine and approve, and (y) Borrower shall have no responsibility for the failure of Lender ~~in writing and Lender failed~~ (or its agents) to ~~incorporate such comments (assuming such comments were accurate~~accurately transcribe written information supplied by Borrower). This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower or its Affiliates if Borrower does not provide the indemnification certificate. It is agreed that Lender shall specify the information in the aforementioned memorandum or prospectus covered by such certificate. In addition, it is agreed that such certificate may state that it expresses no conclusion, with respect to a prospectus required to be filed with the U.S. Securities and Exchange Commission (“SEC”), as to the necessity of including information in such prospectus or the proper presentation of any information included therein to comply with the technical requirements imposed by regulation or SEC staff interpretations under the Securities Act relating to the information required to be included by the form of the registration statement to be filed. Notwithstanding anything to the contrary in this Section 9.2, the indemnity, reimbursement and contribution obligations set forth in this Section 9.2 with respect to any preliminary private placement memorandum or preliminary prospectus shall not inure to the benefit of Lender, the Greenwich Group or the Underwriter Group (the “Indemnified Member”) if the Person asserting any such loss, claim, damage or liability purchased any of the Securities which are the subject thereof and did not receive a copy of the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented) at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required and the untrue statement or omission of a material fact contained in such preliminary private placement memorandum or preliminary prospectus was corrected in the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented). (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower agrees to indemnify (i) Lender, the ~~Indemnified Persons~~ Greenwich Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Greenwich 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 (which is used in such filing and which Borrower has had an opportunity to examine and approve) 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,~~ made not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Greenwich Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Greenwich Group or the Underwriter Group in connection with defending or investigating the ~~Liabilities~~Liabilities only in the event that it shall be determined that there was such an omission. (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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 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~~Member, which approval shall not be unreasonably withheld provided that such approval is not required in connection with any settlement which includes any unconditional release of all Indemnified Members involved in such action and all related actions for all liability for which such parties are seeking indemnification and there is no admission of wrongdoing on the part of any Indemnified Member. 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 party. If Borrower has assumed the defense of any action brought against any Indemnified ~~Person. (e) Without~~ Member, then such Indemnified Member shall not settle such action without the ~~prior~~ consent of ~~the Indemnified Person in question (~~Borrower, which consent shall not be unreasonably withheld). Notwithstanding the foregoing, ~~Borrower~~ the indemnifying party shall not ~~settle~~ be responsible for defending any action in which a final determination is made concluding that there was such an omission. (e) In order to provide for just and equitable contribution in circumstances in which the indemnity agreements provided for in Section 9.2(b) or ~~compromise~~ (c) is or ~~consent~~ are for any reason held to ~~the entry of any judgment in any pending or threatened claim, action, suit or proceeding~~ be 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~~ c) 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 1l(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) Greenwich’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 Securitization~~per 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 (Pebblebrook Hotel 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~~ The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement (i) (1) certifying that (A) ~~Borrower has~~ the Indemnifying Persons have carefully examined the sections of the Disclosure ~~Documents, including, without limitation, the sections~~ Documents entitled “~~Risk Factors,” “Special Considerations~~Description of the Mortgages,” “Description of ~~the Collateral~~die Mortgage Loans and Mortgaged Property,” ~~“Description of the Mezzanine Loans,” “The Operating Company,”~~ and “The Borrower” (but only to the extent they related to the Mortgages, the Loan, the Properties or Borrower and only if Borrower has been given a reasonable opportunity to review such sections) (collectively, the “~~Certain Legal Aspects of the Mezzanine Loans,”~~ Disclosure Documents Sections”) and (B) ~~such sections~~ the Disclosure Documents Sections and ~~such other information~~ any Provided Information properly used in connection with the preparation of 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 Informationcollectively, 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, (provided that such certification shall be as to Borrower’s knowledge with respect to information provided or furnished by Operator Tenants to Borrower) and (2) which is otherwise reasonably satisfactory to Lender and Borrower, (ii) jointly and severally indemnifying Lender, ~~each Noteholder, JPM~~ CS (whether or not it is the Lender), any Affiliate of ~~JPM or a Noteholder~~ CS 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~~ CS 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 (provided that such indemnification shall be applicable with respect to information furnished by Operator Tenants to Borrower only if Borrower has knowledge that such information was an untrue statement- of material fact or was an omission or alleged omission to state a material fact necessary in order to make such information, in light of the circumstances under which it was 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 any filings under the Exchange ~~Act (if any)~~Act, ~~Borrower agrees~~ the Indemnifying Persons jointly and severally agree to indemnify (~~i) the~~ 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 Disclosure Documents Sections or in any Provided Information properly used in connection with the preparation of the Disclosure Documents or any filings under the Exchange Act (collectively, the “Filings Covered Disclosure Information”), or the omission or alleged omission to state in the Filings Covered Disclosure Information a material fact ~~required to be stated therein or~~ necessary in order to make the statements in the Filings Covered Disclosure Information, in light of the circumstances under which they were made, not misleading (provided that such indemnification shall be applicable with respect to information furnished by Operator Tenants to Borrower only if Borrower has knowledge that such information was an untrue statement of material fact or was an omission or alleged omission to state a material fact necessary in order to make such information, in light of the circumstances under which it was 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~~any 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 thereof, Borrower~~ any 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 ~~Borrower~~an 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 ~~Borrower~~the Indemnifying Person, the Indemnified Person ~~or Persons~~ as a group 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~~Person. 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~~ Indemnifying Persons 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. (e) Without the prior consent of ~~the Indemnified Person in question~~ CS (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~~ for any Indemnified Person that is an actual party or ~~potential~~ reasonably could become a party to such claim, action, suit or proceeding) unless ~~Borrower~~ the Indemnifying Person that shall have given ~~such Indemnified Person~~ CS 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 ~~Borrower~~the 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~~ x)in such proportion as is appropriate to reflect the relative benefits to ~~Borrower~~the 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 ~~Borrower~~the 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

Sources: Loan Agreement (Capitalsource 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 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, upon Lender’s written request (electronic mail addressed to Asset Manager at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with duplicate written notice provided in accordance with Section 10.6 hereof), 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 possession~~respects. (b) Upon Lender’s written request (electronic mail addressed to Asset Manager at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with duplicate written notice provided in accordance with Section 10.6 hereof), Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 qualified solely to the extent it relates to Borrower, Guarantor, the Properties, Manager and/or the Loan (iA) certifying that ~~(A)~~ Borrower has carefully examined ~~the Disclosure Documents~~such memorandum or prospectus or term sheets, ~~including~~as applicable, ~~without limitation,~~ including the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “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 ~~(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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ GACC 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~~ its respective ~~officers,~~ directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its respective 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~~Lender Group”), and GACC, its directors and each Person who controls GACC 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 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 Lender Group and the Underwriter Group for any reasonable 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 and 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 financial statements of Borrower and Guarantor, operating statements, rent rolls, environmental site assessment reports (only to the extent Borrower provided information with respect to such reports), property condition reports (only to the extent Borrower provided information with respect to such reports), in each case prepared by or on behalf of Borrower, with respect to the Properties and any other Provided Information. 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 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~~ 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 Lender Group or the Underwriter Group for any reasonable third party, out-of-pocket legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending or investigating ~~the~~ such 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 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 ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per 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~~ Guarantor and 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 (Cole Credit Property Trust II Inc)

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 possession~~respects. (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 Considerations~~Description of the Properties,” “Description of the ~~Collateral~~Loan 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, Borrower~~other 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 Company~~and 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 (~~iii~~C) 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 (~~iii~~C) 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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~~proceedings 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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

Sources: Mezzanine Loan Agreement (BRE Select Hotels Corp)

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 possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 limitation~~sections 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 Properties~~best 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 ~~Lender~~Lender (and for purposes of this Section 14.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Information~~Securitization 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Information~~therein, 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~~misleading, 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~the 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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

Sources: Loan Agreement (Reckson Operating Partnership Lp)

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 1933~~each 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 1934~~indemnifying Lender, ~~as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities~~any Issuer Person, the ~~Rating Agencies~~Issuer 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 possession~~this 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 ~~Documents~~Documents relating to the following: (1) Borrower, ~~including~~any SPE Equity Owner, ~~without limitation~~any 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 Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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 Persons~~Third 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 provided~~Securities 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~~ 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 (i~~this 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 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~~ and each guarantor agree, in connection with ~~the Securitization and may also be included in filings with the Securities and Exchange Commission pursuant~~ each Disclosure Document, to ~~the Securities Act of 1933~~provide an indemnification certificate, as ~~amended~~ set forth below, indemnifying Lender, any Issuer Person, the Issuer Group and/or the Underwriter Group (as those terms are defined below; each an “Indemnified Party” and collectively the “~~Securities Act~~Indemnified Parties”~~), or~~ ) for any losses to which any Indemnified Party may become subject under 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 possessionconditions set forth below. (b) ~~Borrower agrees to provide, in connection with the Securitization, an~~ The indemnification ~~agreement~~ certificate will provide that (i) ~~certifying that~~ Borrower and each guarantor have carefully examined those sections of the Disclosure Documents relating to the following: (A) Borrower, any SPE Equity Owner, any guarantor, any Property Manager, their respective Affiliates, the Loan and the Mortgaged Property (the “Borrower ~~has carefully examined the Disclosure Documents, including, without limitation,~~ Information”); and (B) the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” and/or “~~Description of the Collateral~~Risk Factors,~~” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower~~” and “Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage 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~~ the Borrower Information ~~or any information regarding~~ (the ~~Properties~~“Borrower Information Sections”). (ii) To the best of such indemnitor’s knowledge, ~~Borrower, Mortgage Borrower,~~ with regard to the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided~~ 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~~ 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 Persons~~Third Party Information”), and the obligations and liability of Borrower and any guarantor pursuant to this Section shall not extend to the Third Party Information. (c) 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”). (d) 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 provided~~Securities Liabilities. (e) The indemnitors will be liable under clauses (b), ~~however, that Borrower shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ (c) and (d) above 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 (including~~ Loan, including, without ~~limitation~~ 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. (5f) ~~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 be effective whether or not an indemnification ~~agreement~~ certificate 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 provided 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 applicable based on information previously provided by 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~~ Borrower 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) guarantor if the ~~allocation provided by clause (x) above~~ indemnification certificate 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 Securitizationprovided. (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 For purposes 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.Section:

Appears in 1 contract

Sources: Multifamily Mortgage, Assignment of Rents and Security Agreement (Paladin Realty Income 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”), 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) At Lender’s 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 statements in the sections of such Disclosure ~~Documents~~Documents specifically relating to Borrower, ~~including, without limitation~~Borrower Affiliates, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description~~ Property, Manager, Sponsor, Guarantor and other material terms of the ~~Collateral,” “Description~~ Loan specified by Lender in writing to Borrower and that each such statements, as they relate to Borrower, Borrower Affiliates, the Property, Manager, Sponsor, Guarantor and all other material terms 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 not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make ~~the statements made~~such statements, in the light of the circumstances under which they were made, not misleading, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 13.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Bridge 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~~Bridge Group”), and Bridge, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls Bridge 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 Bridge 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, in light of the circumstances under which they were made, not misleading and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Bridge Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Bridge 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 in writing 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)~~Property (collectively, 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 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 ~~(if any)~~Filings, Borrower ~~agrees to indemnify~~ shall (i) indemnify Lender, the ~~Indemnified Persons~~ Bridge Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ Lender, the Bridge 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,~~ Document 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 ~~Information~~Document, in light of the circumstances under which they were made, not misleading and (ii) reimburse ~~each Indemnified Person~~ Lender, the Bridge Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Bridge Group or the Underwriter Group in connection with defending or investigating the Liabilities; 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. (d) Promptly after receipt by an ~~Indemnified Person~~ indemnified party under this Section 13.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 13.2, 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 Person~~any 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 Person~~such 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 action~~indemnified party under this Section 13.2, ~~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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 13.2(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 13.2(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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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) Bridge’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~~per 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 the Securitization~~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~~ 13.2 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 (Gaia, Inc)

Securitization Indemnification. (a) Each of Borrower ~~understands~~ and Maryland Owner 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 Securities~~investors, 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 and Maryland Owner 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 possession~~respects. (b) ~~Borrower agrees~~ Borrower, Maryland Owner, 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 ~~Documents~~Documents as such Disclosure Documents relate to Borrower, ~~including~~Maryland Owner, Principal, Indemnitor, the Properties, the Loan and the Mezzanine Loan, including without limitation, 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,” “The Maryland Owner” and “Certain Legal Aspects of the ~~Mezzanine Loans~~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 Properties, Borrower, ~~Mortgage~~ Indemnitor, Maryland Owner, Mezzanine Borrower, ~~the Collateral~~Manager, the ~~Senior~~ Loan and/or the 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 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 -120- 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~~C) 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 or Maryland Owner may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (iiB) and (~~iii~~C) 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: 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 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, upon request, Borrower will reasonably cooperate with ~~the holder of the Note~~ Lender in updating the Disclosure Document by providing ~~all~~ reasonably current information necessary to keep the Disclosure Document accurate and complete in all material respects as it relates to the ~~extent in~~ Property, the Collateral, Borrower~~’s possession~~, each Owner Party, each Guarantor and Principal. (b) Borrower agrees to provide, upon Lender’s request in connection with the Securitization, an indemnification agreement (i) certifying that ~~(A)~~ Borrower has carefully examined those portions of the Disclosure ~~Documents~~Documents reasonably designated in writing by Lender for Borrower’s review regarding the Property, the Collateral, Borrower, each Owner Party, each Guarantor, the Operating Lease, the Ground Leases, the Management Agreement, the Hotel Management Agreement and the King’s Village Management Agreement and Principal, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the ~~Collateral~~Mortgage Loans and Mortgaged Property” (solely as it relates to Borrower or the Property themselves and not with respect to the Loan, the Loan Documents or any other matter), “The Manager,” ~~“Description of the Mezzanine Loans,” “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 Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information, the “Covered Disclosure Information”~~) do~~ ), and that the information provided in such portions of the Disclosure Documents does not (except to the extent specified by Borrower if Borrower does not agree with the statements contained therein), as of the 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~~made therein, 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 (the “Filer”) 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~~Filer Group”), and the Filer, each of its directors and each Person who controls the Filer within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any actual out-of-pocket losses, claims, damages (excluding lost profits, diminution of value or 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 Filer Group or the Underwriter Group may become subject ~~insofar as~~ to the extent 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, 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~~ misleading, and (iii) agreeing to reimburse ~~each Indemnified Person~~ Lender, the Filer Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the Filer Group and the Underwriter Group in connection with investigating or defending the ~~Liabilities~~ Liabilities. Notwithstanding anything to the contrary contained herein or in any indemnification agreement, (x) Borrower’s obligation to indemnify in respect of any information contained in any Disclosure Document 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 in the Covered Disclosure Information that results directly 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 approve and (y) Borrower shall have no responsibility for the failure of any member of the Securitization underwriting group to accurately transcribe written information supplied by Borrower or to include such portions of the Covered Disclosure Information); provided, however, that (1) Borrower ~~shall have liability with respect to Liabilities arising out of or based upon the Covered Disclosure Information~~ will be liable in any such case under clause (ii) 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 ~~in reliance upon~~ which the Indemnifying Persons have been given the opportunity to examine 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)reasonably approve. This indemnity agreement will be in addition to any liability ~~which~~ that Borrower may otherwise have. Moreover, the indemnification provided for in ~~clauses~~ clause (ii~~) and (iii~~) above shall be effective whether or not an a separate indemnification agreement described in clause (i) above is provided. Notwithstanding anything to the contrary contained in this Section 9.2, the indemnity, reimbursement and contribution obligations set forth in this Section 9.2 with respect to any preliminary private placement memorandum or preliminary prospectus shall not inure to the benefit of Lender or any of the Filer Group or Underwriter Group if the Person asserting any such Liability purchased any of the Securities which are the subject thereof and did not receive a copy of the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented) at or prior to the confirmation of the sale of such Securities to such Person in any case where such delivery is required and the untrue statement or omission of a material fact contained in such preliminary private placement memorandum or preliminary prospectus was corrected in the final private placement memorandum or final prospectus (or the final private placement memorandum or final prospectus as supplemented). (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~~ indemnified party under this Section 9.2 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~indemnified party. (ed) ~~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 (which consent shall not~~ Section 9.2(b) 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 (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 indemnifiable under 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,~~ 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Filer’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 solely by ~~underwriting discount~~ pro rata or ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per 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. (he) 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: Senior Loan Agreement (Hyatt Hotels 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 possession~~respects. (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 Company~~Information) (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,~~ 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 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~proceedings~~proceeding. 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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~~Obligations. (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 (Maguire Properties 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”~~"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 possession~~respects. (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~~Mortgages,~~” “~~" "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 (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,~~ Borrower and/or the ~~Collateral, the Senior Mezzanine Collateral and/or Operating Company~~Loan) (collectively with the Provided Information, the ~~“Covered Disclosure Information”~~"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”~~"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”~~"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 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~~ , provided that Borrower has been given the ~~Exchange Act (if any), Borrower agrees~~ opportunity 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 review 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 (Skilled Healthcare 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 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~~respects. (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~~Mortgages,” “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 (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~~Property, 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~~ 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 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 (Fairchild Corp)

Securitization Indemnification. (a) Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by Borrower, Mortgage Borrower, or their 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 ~~Securities~~Securities 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 possession~~respects. (b) Borrower ~~agrees to provide~~shall certify, in connection with ~~the~~ any Disclosure Document provided to Borrower by Lender in connection with a Securitization, ~~an indemnification agreement (i) certifying~~ that ~~(A)~~ Borrower has ~~carefully~~ examined the provisions of such Disclosure ~~Documents~~Document, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The reasonably designated in writing by Lender for Borrower” 's review and ~~“Certain Legal Aspects of the Mezzanine Loans,” and (B) such sections and such other information in the Disclosure Documents (~~pertaining to ~~the extent such information relates to or includes any Provided Information or any information regarding the Properties,~~ Borrower, Mortgage Borrower, ~~the Collateral~~Guarantor, Manager, the ~~Senior Mezzanine~~ Collateral and/or ~~Operating Company~~the Property (which designation shall in no event include the descriptions or summaries of the terms and conditions of the Loan Documents) and any special risks or considerations relating thereto (but not including risks or special considerations relating to local or federal law) (~~collectively with~~ the ~~Provided Information, the “~~"Covered Disclosure Information”") do and such Covered Disclosure Information does not (except to the extent noted by Borrower in writing to Lender if Borrower does not agree with the statements therein), as of the date of such certification, 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~~ . Borrower hereby agrees to 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 issuer, the sponsor or depositor in connection with ~~the~~ a Securitization, any Affiliate of ~~JPM or a Noteholder~~ Lender 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 ~~Persons”),~~ Parties") for any liabilities, obligations, actual 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 or arise out of of, or are based ~~upon~~ upon, the omission or 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 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) a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement (except that (A) Borrower's obligation to indemnify in respect of any information contained in a Disclosure Document that is derived in part from information provided by Borrower or any Affiliate of Borrower and in part from information provided by others unrelated to or not employed or engaged by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results directly or indirectly from an error in any information provided (or which should have been provided) by Borrower and (B) Borrower shall have no responsibility under this Section 9.2 for (x) any untrue statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to in writing to Lender so long as such objection is not inconsistent with information :furnished to Lender by or on behalf of Borrower in connection with the origination of the Loan or (y) numbers which have been submitted by Borrower and adjusted by any of the Securitization Indemnified Parties from those submitted by Borrower, to the extent of such adjustment). Borrower also agrees to reimburse each Securitization Indemnified ~~Person~~ Party, within ten (10) Business Days after request therefor, for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified ~~Persons~~Party in connection with investigating or defending the Securitization Indemnification Liabilities. Borrower's liability under this paragraph will be limited to any such Securitization Indemnification Liability that arises out of or is based upon an 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 Documents 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). This indemnity provision will be in addition to any obligation or liability which Borrower may otherwise have. (c) In connection with 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 ~~they~~ it relates to the Property, Borrower, Mortgage Borrower, Guarantor, any Affiliate of Borrower, Mortgage Borrower or Guarantor, Manager or any other aspect of the Loan, Borrower agrees to (i) indemnify the Securitization Indemnified Parties for Securitization Indemnification Liabilities to which any Securitization Indemnified Party may become subject insofar as the Securitization Indemnification Liabilities arise out of, or are ~~incurred~~based upon, an untrue statement or omission made 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 Document, in connection with the underwriting or closing of the Loan or any of the reports, 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 Party, within ten (10) Business Days of demand therefor, for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified 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 ~~action~~action 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 action~~such 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~~ 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 ~~Person~~Party, 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 ~~Person~~Party. 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 ~~action~~suit, 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 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 PersonParties. Borrower shall not be liable for the reasonable 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 ~~Person~~Party. The Securitization Indemnified Party shall instruct its counsel to maintain reasonably detailed billing records for reasonable fees and disbursements for which such Securitization Indemnified Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel's reasonable fees and disbursements are related solely to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified Party. (e) Without the prior written consent of the applicable Securitization Indemnified ~~Person in question~~ Party (which consent shall not be unreasonably ~~withheld~~withheld 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 ~~proceedings~~proceeding. 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 ~~withheld~~withheld 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 ~~Person~~Party, 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 ~~Person~~Party, 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~~ 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 ~~Persons~~Parties, 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) the Securitization Indemnified Parties and Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (B) the opportunity to correct and prevent any statement or omission; and (C) 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 per capita allocation. Notwithstanding the provisions of this Section 9.2, (AI) 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 (BII) 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 Securitization~~Loan. (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 ~~lawsuits~~claim, ~~claims~~ action, suit or ~~other proceedings~~proceeding. 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 1 contract

Sources: Mezzanine Loan Agreement (KBS Strategic Opportunity REIT, Inc.)

Securitization Indemnification. (a) ~~Borrower~~ Pledgor 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~~ Pledgor 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 possession~~respects. (b) ~~Borrower~~ Pledgor agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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~~ Pledgor has carefully examined the ~~Disclosure Documents, including, without limitation~~portions of such memorandum or prospectus or term sheets identified by Lender that relate 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 Collateral, the ~~Senior~~ Mezzanine ~~Collateral and/or Operating Company) (collectively with the Provided Information~~A Collateral, ~~the “Covered Disclosure Information”)~~ Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, 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, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ Lender (“Securitization Affiliate”) 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 Securitization Affiliate within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “~~Indemnified Persons~~Securitization Affiliate Group”), and Securitization Affiliate, each of its directors and each Person who controls Securitization Affiliate 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 Securitization Affiliate 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, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager and Guarantor 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 relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Securitization Affiliate Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Securitization Affiliate Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor 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 Pledgor or its Affiliates 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 Pledgor, 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 Pledgor 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 Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate. (c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Securitization Affiliate Group and the Underwriter Group for Liabilities to which Lender, the Securitization Affiliate 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 relating to the Loan, the Properties, the Collateral, the Mezzanine A Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, Mezzanine A Borrower, Mezzanine A 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, 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 Securitization Affiliate Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Securitization Affiliate 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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) Securitization Affiliate’s and Pledgor’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 Pledgor 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 Securitization~~per 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~~ Pledgor 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 (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 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 ~~possession~~possession 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 Securitization~~agent, any other ~~co-underwriters, co-placement agents~~ co‑underwriters or ~~co-initial purchasers of Securities issued in the Securitization~~co‑placement agents, 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 ~~9.2~~8.2. 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 ~~withheld~~withheld 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 ~~proceedings~~proceedings 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 ~~withheld~~withheld 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 ~~9.2~~8.2), 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 ~~9.2~~8.2, (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 Securitization~~Loan. (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 ~~9.2~~8.2. (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 1 contract

Sources: Loan Agreement (American Homes 4 Rent)

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 Agencies~~investment 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 Securities~~manner 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 possession~~any 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 Securitization~~at 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 Documents~~those portions of such memorandum or prospectus, ~~including~~as applicable, ~~without limitation~~reasonably 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 Information~~statements 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder~~Lender 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 Persons~~Lender 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 (~~iii~~ii) ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~defense, ~~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 sentence~~thereof; 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 ~~Borrower~~the 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 ~~withheld~~withheld 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 9.2~~c), ~~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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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)

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 Lender~~SUBJECT TO THE TERMS OF ARTICLE 13 HEREOF, ~~each Noteholder~~INDEMNIFYING LENDER (AND FOR PURPOSES OF THIS SECTION 11.2, ~~JPM (whether or not it is the Lender~~LENDER 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 Securitization~~THE 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 losses~~EACH OF ITS DIRECTORS, ~~claims~~EACH 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 made~~CLAIMS, ~~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 (~~iii~~C) 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 Person~~Lender, ~~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 accurate~~the “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 made~~IN 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~indemnified 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 ~~otherwise~~per capita allocation. (f) ~~actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~SUBJECT 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 Corporate Income Trust, Inc.)

Securitization Indemnification. (a) Borrower ~~understands~~ and Indemnitor understand that certain of the Provided Information may be included in a private placement memorandum, offering circular or other offering or disclosure documents (the "Disclosure ~~Documents~~ 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, any securities exchange, 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 Indemnitor will cooperate with the holder of the Note in drafting and updating the Disclosure Document by providing all current information ~~necessary~~ available to Borrower and necessary, with respect to the Provided Information, the Properties, the Master Leases, the Master Tenants, Borrower and its Affiliates, or the Loan, to keep the Disclosure Document accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (b) Borrower ~~agrees~~ and Indemnitor agree to ~~provide,~~ provide in connection with ~~the Securitization, an indemnification agreement~~ each of (i) ~~certifying that~~ a preliminary and a final private placement memorandum, (ii) a preliminary and final prospectus or prospectus supplement or (iii) such other offering materials as may be used for the securitization of the Loan (such materials described in clauses (i), (ii) or (iii), as applicable, being hereinafter referred to collectively as the "Offering Materials") an indemnification certificate jointly and severally (A) certifying that Borrower ~~has~~ and Indemnitor have carefully examined the ~~Disclosure Documents~~Offering Materials, ~~including,~~ including without limitation, the sections entitled “"Summary of Offering Circular," "Risk Factors,~~” “Special Considerations,” “~~" "Description of the ~~Collateral~~Properties,~~” “~~" "Description of the ~~Mezzanine Loans~~Loan,~~” “The Operating Company,” “The Borrower”~~ " and ~~“Certain Legal Aspects~~ "Description of ~~the Mezzanine Loans,” and (B) such sections~~ Entertainment Properties Trust" and such ~~other information in the Disclosure Documents (~~Offering Materials to the extent ~~such information relates~~ 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 Master Leases, the ~~Collateral~~Master Tenants, Borrower and its Affiliates, Indemnitor and its Affiliates, any parties to any of the Loan Documents other than the Lender, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with~~ Servicer or any Affiliates of either the ~~Provided Information~~Lender or the Servicer, the ~~“Covered Disclosure Information”)~~ Loan Documents or the Loan (other than federal income tax matters and ERISA matters which do not pertain to the Properties, the Master Leases, the Master Tenants, Borrower or its Affiliates), 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 ~~Lender~~Lender and G▇▇▇▇▇▇ S▇▇▇▇ Mortgage Company and the G▇▇▇▇▇▇ Sachs Group, ~~each Noteholder, JPM (whether or not it is the Lender),~~ Inc. and 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 Securitizationtheir respective Affiliates, and each of their respective ~~officers, directors, partners, employees, representatives, agents~~ officers and ~~Affiliates~~ directors and each ~~Person~~ person or entity who controls ~~any~~ each such Person within the meaning of Section 15 of the Securities Act, or Section 20 of the Exchange Act (Lender, G▇▇▇▇▇▇ S▇▇▇▇ Mortgage Company, the G▇▇▇▇▇▇ Sachs Group, Inc. and such Affiliates, directors, officers or Persons being hereinafter referred to collectively as the "Lender and Goldman Group"), and each underwriter or placement agent with respect to the Securities, each of their respective officers and directors and each person or entity who controls each such Person within the meaning of Section 15 of the Securities Act or and Section 20 of the Exchange Act (collectively, the ~~“Indemnified Persons”),~~ "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~~ the Lender and Goldman Group or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or misstatement or alleged untrue statement or misstatement of any material fact contained in the portions of the Offering Materials covered by the indemnification certificate (the "Covered ~~Disclosure Information~~ 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 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 (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ the Lender and Goldman Group and the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person, as they are incurred,~~ the Lender and Goldman Group and the Underwriting Group in connection with investigating or defending the ~~Liabilities provided, however, that Borrower shall have~~ Liabilities. The 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~~ Indemnitor under the indemnification provided for in clauses (B) and ~~rent rolls with respect to the Properties), and in no event~~ (C) above 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 or Indemnitor may otherwise have. Moreover, the indemnification provided for in clauses (iiB) and (~~iii~~C) above shall be ~~effective whether or not~~ effective, and Borrower and Indemnitor hereby agree to indemnify and hold harmless the Lender and Goldman Group and the Underwriter Group if Borrower and Indemnitor fail to deliver an indemnification ~~agreement~~ certificate described in clause (iA) above ~~is provided~~within a reasonable time after delivery of the applicable Offering Materials to Borrower and Indemnitor for review in connection with the request for the indemnification certificate and indemnification by Borrower and Indemnitor shall be applicable based on information previously provided by Indemnitor, Borrower or Affiliates of Borrower or Indemnitor, as updated and corrected, and with respect to which Borrower or Indemnitor have not previously raised objections. (c) In connection with filings under the Exchange ~~Act (if any)~~Act, Borrower ~~agrees~~ and Indemnitor agree to ~~indemnify~~ (i) indemnify the ~~Indemnified Persons~~ Lender and Goldman Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person~~ the Lender and Goldman 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 Information,~~ 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 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 (ii) reimburse ~~each Indemnified Person~~ the Lender and Goldman Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons, as they are incurred,~~ the Lender and Goldman Group or the Underwriter Group in connection with defending or investigating the Liabilities. (d) Borrower and Indemnitor agree that no Indemnified Person shall have any liability to Borrower or Indemnitor 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 or Indemnitor 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,~~ Borrower or Indemnitor notify ~~Borrower~~ such entity in writing of the claim or the commencement of that action; provided, however, that the failure to notify Borrower or Indemnitor (as applicable) 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, such Indemnified Person shall have the right to employ separate counsel in any such action and ~~it shall notify Borrower thereof, Borrower shall be entitled~~ to participate ~~therein and~~in the defense thereof and Borrower or Indemnitor (as applicable) shall pay the fees, expenses and disbursements of such counsel and such counsel shall, to the extent ~~that it wishes~~consistent with its professional responsibility, ~~assume the defense thereof~~ cooperate with Borrower or Indemnitor (as applicable) and any counsel ~~reasonably satisfactory to the Indemnified Person. After notice from any~~ selected by 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~~ Indemnitor (as ~~provided in the following sentence~~applicable); provided, however, that, if ~~the defendants in any such action include both Borrower, on the one hand, and one or more~~ multiple Indemnified Persons ~~on the other hand, and an Indemnified Person~~ shall ~~have reasonably concluded that there are any legal defenses available~~ seek to ~~it and/or other Indemnified Persons that are different~~ be indemnified by Borrower 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 Indemnitor under this Section 9.2 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 Liabilities arising out of a ~~claim for which~~ single action or omission, Borrower ~~is required hereunder to indemnify such Indemnified Person. Borrower~~ or Indemnitor (as applicable) shall not be ~~liable for~~ required to pay the fees, expenses and disbursements of more than ~~one (1) such separate counsel unless such~~ a single outside law firm representing all of the applicable 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~~Persons as a group in connection therewith. (ef) Without the prior written consent of ~~the Indemnified Person in question~~ Lender (which consent shall not be unreasonably ~~withheld~~withheld or delayed), neither Borrower ~~shall not~~ nor Indemnitor will 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 or Indemnitor (as applicable) 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. As long as Borrower or Indemnitor (as applicable) has complied with its obligations to defend and indemnify hereunder, Borrower or Indemnitor (as applicable) shall not be liable for any settlement made by Lender or any other Indemnified Person without the consent of Borrower or indemnitor (as applicable) (which consent shall not be unreasonably ~~withheld~~withheld or delayed). (fg) Borrower ~~agrees~~ and Indemnitor agree 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 or Indemnitor (as applicable) 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 or Indemnitor (as applicable) 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 or Indemnitor (as applicable) 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~~ Borrower, Indemnitor 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 (by underwriting discount or otherwise) actually received by the ~~Indemnified Persons~~ Lender and Goldman Group and the Underwriter Group in connection with the closing of the Loan or the ~~Securitization~~securitization or other secondary market sale of the Loan. (gh) Borrower ~~agrees~~ and Indemnitor agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not the Lender and Goldman Group, the Underwriter Group or any other Indemnified Person 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 the Lender and Goldman Group or the Underwriter Group (each member of the Lender and Goldman Group, the Underwriter Group and each such controlling person, director, partner, officer, employee, representative or agent being, an "Indemnified Person"). Borrower and Indemnitor further ~~agrees~~ agree 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 9.2~~within the meaning of the Securities Act. (hi) The liabilities and obligations of ~~the Indemnified Persons~~ Borrower, Indemnitor 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 (Entertainment Properties 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~~ 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 possession~~respects. (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 ~~Securitization~~securitization 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 Documents~~portions 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 Loans~~Mortgage 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Credit 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Information~~factor, 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 Persons~~Lender, ~~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 ~~withheld~~withheld 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 ~~withheld~~withheld 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 9.2~~within 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) Each Borrower understands that ~~certain of the Provided Information~~ information provided to Lender by such 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”~~"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,~~ 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) Each 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 such Borrower has ~~carefully~~ examined ~~the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description~~ such provisions 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~~ as specified by Lender and that each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding the Properties,~~ such Borrower, ~~Mortgage~~ such Borrower's Affiliates, the ~~Collateral~~applicable Individual Property, Manager and all other aspects of the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Loan, ~~the “Covered Disclosure Information”) do~~ does not contain any untrue statement of a 153 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 (provided such Disclosure Documents are not materially modified after Borrower's review), (iiB) indemnifying ~~Lender~~Lender (and for purposes of this SECTION 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ UBS Warburg ("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”)~~"LIABILITIES") to which ~~any such Indemnified Person may become subject~~ Lender, the UBS Group or the Underwriter Group incur insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, any untrue statement or alleged untrue statement of any material fact contained in ~~the Covered Disclosure Information~~ such sections specified by Lender or arise out of of, or are based ~~upon~~ 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 specified by Lender or necessary in order to make the statements in ~~the Covered Disclosure Information~~such sections specified by Lender, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Person~~Lender, ~~as they are incurred,~~ the UBS Group and/or 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~~ 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~~ Liability arises out of of, or ~~are~~ is based ~~upon~~ upon, any such untrue statement or omission made ~~in the Covered Disclosure Information~~ therein in reliance ~~upon~~ upon, and in conformity ~~with~~ with, information furnished to Lender ~~or such Noteholder~~ by or on behalf of ~~Borrower~~ Borrowers 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~~ Borrowers, 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~~ Borrowers 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~~ any Exchange Act ~~(if any)~~Filing, ~~Borrower agrees to indemnify~~ Borrowers shall (i) indemnify Lender, the ~~Indemnified Persons~~ UBS Group and the Underwriter Group for Liabilities to which ~~any such Indemnified Person may become subject~~ Lender, the UBS Group and/or the Underwriter Group actually incur insofar as the Liabilities arise out of of, or are based ~~upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information~~upon, 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 ~~Information~~Document, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (ii) reimburse ~~each Indemnified Person~~ Lender, the UBS Group and/or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the UBS Group 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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. 154 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 Person~~any 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 Person~~such 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 action~~indemnified party under this SECTION 9.2, ~~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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~the indemnifying 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 Borrower~~respect thereof); PROVIDED, ~~on the one hand~~HOWEVER, 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) UBS's and Borrowers' 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 Borrowers 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 Securitization~~per 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 Borrowers and ~~Borrower~~ Lender under this ~~Section~~ 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 Properties Inc)

Securitization Indemnification. (a) ~~Borrower~~ Pledgor 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~~ Pledgor 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 possession~~respects. (b) ~~Borrower~~ Pledgor agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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~~ Pledgor 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~~the Collateral, Pledgor, Principal, Mortgage Borrower, ~~the Collateral~~Mortgage Principal, ~~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, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Citigroup 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, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, any Affiliated Manager and Guarantor 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 relating to the Loan, the Properties, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage Principal, any Affiliated Manager and Guarantor or in light of the circumstances under which they were made, not misleading and (C) agreeing to reimburse Lender, the Citigroup Group and the Underwriter Group for any legal or other expenses reasonably incurred by Lender the Citigroup Group and the Underwriter Group in connection with investigating or defending the Liabilities; provided, however, that Pledgor 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 Pledgor or its Affiliates 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 Pledgor, 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 Pledgor 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 Pledgor or its Affiliates if Pledgor does not provide the indemnification certificate. (c) In connection with filings under the Exchange Act, Pledgor agrees to indemnify (i) Lender, the Citigroup Group and the Underwriter Group for Liabilities to which Lender, the Citigroup 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 relating to the Loan, the Properties, the Collateral, Pledgor, Principal, Mortgage Borrower, Mortgage 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, 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 Citigroup Group or the Underwriter Group for any legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 (i) Citigroup’s and Pledgor’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 (Biii) ~~Borrower agrees~~ any other equitable considerations appropriate in the circumstances. Lender and Pledgor 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 Securitization~~per 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~~ Pledgor 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 (KBS Real Estate Investment Trust, Inc.)

Appears in 1 contract

Sources: Mezzanine Loan Agreement (Hersha Hospitality 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 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, upon Lender’s written request (electronic mail addressed to Asset Manager at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with duplicate written notice provided in accordance with Section 10.6 hereof), 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 possession~~respects. (b) Upon Lender’s written request (electronic mail addressed to Asset Manager at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, together with duplicate written notice provided in accordance with Section 10.6 hereof), Borrower ~~agrees~~ and Guarantor agree to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 qualified solely to the extent it relates to Borrower, Guarantor, the Properties, Manager and/or the Loan (iA) certifying that ~~(A)~~ Borrower has carefully examined ~~the Disclosure Documents~~such memorandum or prospectus or term sheets, ~~including~~as applicable, ~~without limitation,~~ including the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “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 ~~(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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ 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~~ its respective ~~officers,~~ directors, ~~partners, employees, representatives, agents and Affiliates~~ each of its respective 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~~Lender Group”), and Barclays, 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 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 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 Lender Group and the Underwriter Group for any reasonable 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 and 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 financial statements of Borrower and Guarantor, operating statements, rent rolls, environmental site assessment reports (only to the extent Borrower provided information with respect to such reports), property condition reports (only to the extent Borrower provided information with respect to such reports), in each case prepared by or on behalf of Borrower, with respect to the Properties and any other Provided Information. 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 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~~ 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 Lender Group or the Underwriter Group for any reasonable third party, out-of-pocket legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~as they are incurred,~~ the Lender Group or the Underwriter Group in connection with defending or investigating ~~the~~ such 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 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 ~~otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization~~per 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~~ Guarantor and 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 (Spirit Realty Capital, Inc.)

Securitization Indemnification. (ai) ~~Borrower~~ Mortgagor understands that certain of the Provided Information and the information required to be delivered by Mortgagor hereunder (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 101 107 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~~ Mortgagor 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 Mortgagor 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. (bii) ~~Borrower~~ In connection with each of (x) a preliminary and a private placement memorandum or (y) a preliminary and final prospectus, as applicable, and provided that Mortgagee, at Mortgagee's cost and expense has provided Mortgagor with drafts of such preliminary and final documents, and such additional information as Mortgagor shall reasonably require, Mortgagor agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification ~~agreement~~ certificate: (iA) certifying that ~~(A) Borrower~~ Mortgagor has carefully examined those portions of such memorandum or prospectus, as applicable, pertaining to Mortgagor, 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 Property", "The ~~Operating Company,” “~~Manager", "The ~~Borrower”~~ Mortgagor" 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~~Mortgagor, the ~~Collateral,~~ Properties 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 1 contract

Sources: Fee and Subleasehold Mortgage, Security Agreement, Financing Statement, Fixture Filing and Assignment of Leases, Rents and Security Deposits (Tower Realty Trust 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 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~~ holder(s) 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 possession~~respects. (b) ~~Borrower agrees to provide~~Upon 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 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 (specified by Lender and that to ~~the extent~~ each Borrower’s actual knowledge, each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding~~ Borrowers, Borrowers’ Affiliates, Guarantors, BREF HR, the Properties, ~~Borrower, Mortgage Borrower~~the IP, the ~~Collateral~~Resort Manager, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Liquor Manager, the ~~“Covered Disclosure Information”) do~~ Gaming Operator and/or the Loan (including each of the Components), 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 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 Borrowers, Borrowers’ Affiliates, Guarantors, BREF HR, the ~~Covered Disclosure Information~~ Properties, the IP, the Resort Manager, the Liquor Manager, the Gaming Operator and/or the Loan (including each of the Components), 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 Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) 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 Borrower, 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 (~~iii~~C) 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 Borrowers, Borrowers’ Affiliates, Guarantors, BREF HR, the ~~Covered Disclosure Information~~Properties, the IP, the Resort Manager, the Liquor Manager, the Gaming Operator and/or the Loan (including any of the Components), or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Borrower’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 ~~Information~~Document, 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 Borrower, 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 ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers 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 wishes~~they 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 sentence~~other 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 ~~Borrower~~Borrowers, 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 Persons~~Person(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, 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~~ 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~~proceeding. 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 ~~9.2~~9.3), then ~~Borrower~~Borrowers, 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~~Borrowers, 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~~Borrowers, 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 ~~9.2~~9.3, ~~(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 ~~9.2~~9.3. (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: Loan Agreement (Bref Hr, LLC)

Securitization Indemnification. (a) ~~Borrower~~ Each Obligor understands that certain of the Provided Information and the information required to be delivered by Borrower hereunder (the "REQUIRED REPORTS") 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 United States 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”)~~applicable law, 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~~Securities or other transfer of ownership with respect to the Securitization, ~~Borrower~~ each Obligor 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 any Obligor, any Subsidiary of an Obligor, and the Individual 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. (b) In connection with each of (x) a preliminary and a private placement memorandum or (y) a preliminary and final prospectus, as applicable, Borrower agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification ~~agreement~~ certificate: (i) provided Borrower has been requested by Lender to do so, and if the applicable items have been revised to reflect all of Borrower's comments, certifying that ~~(A)~~ Borrower has ~~carefully~~ examined those portions of such memorandum or prospectus, as applicable, expressly pertaining to any Obligor, any Subsidiary of an Obligor, and the ~~Disclosure Documents, including, without limitation,~~ Individual 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,” “The~~ " "Borrower” " and “"Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” " (or analogous portions or sections) and ~~(B)~~ such sections (and ~~such~~ any other ~~information in~~ sections reasonably requested and pertaining to any Obligor, any Subsidiary of an Obligor, and the ~~Disclosure Documents (~~Individual Properties or the Loan), all of which sections have been identified 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”) Borrower by Lender do not contain any untrue statement of a material fact or or, to the best of Borrower's knowledge, 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~~materially misleading as the applicable sections pertain to Borrower, the Loan and the Properties; (ii) indemnifying ~~Lender, each Noteholder, JPM (whether or not it is~~ Lender and the ~~Lender), any Affiliate~~ Affiliates of ~~JPM or~~ Lender that have filed a ~~Noteholder that has filed any~~ registration statement relating to the Securitization (the "REGISTRATION STATEMENT"), each of their directors, each of their officers who have signed the Registration Statement and each Person who controls Lender or ~~has acted as~~ Lender Parent within the ~~sponsor~~ meaning of any federal or ~~depositor in connection with~~ state securities laws (collectively, the ~~Securitization~~"LENDER GROUP"), any ~~Affiliate of JPM~~ underwriters selected by Lender 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 Lender Parent for 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~~ the underwriters in question, within the meaning of ~~Section 15 of the Securities Act~~ any federal or ~~Section 20 of the Exchange Act~~ state securities laws (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, 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~~ applicable portions of such sections described in Section 12.10(b)(i) expressly applicable and relating to the Obligors, any Subsidiary of the Obligors, the Individual Properties 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 and~~ misleading, provided, however, that Borrower shall not be required to indemnify Lender for any Liabilities relating to untrue statements or omissions which Borrower identifies to Lender in writing at the time of Borrower's examination of the Registration Statement; and (iii) agreeing to reimburse ~~each Indemnified Person~~ the Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by such ~~Indemnified Person, as they are incurred,~~ Persons in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower's Liability under clauses (i), ~~however, that Borrower~~ (ii) above and this clause (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 prepared and furnished to Lender ~~or such Noteholder~~ by ~~or on behalf~~ any Obligor pursuant to provisions 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)Sections 12.08, 12.09, 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)12.10 hereof. 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~~ indemnified party under this Section 12.10 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 12.10, 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 Person~~any 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 Person~~such 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 12.10, the ~~defense of such claim or action, Borrower~~ 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 sentence~~other 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 ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the ~~right~~ right, following notice to and consultation with Borrower, 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 ~~Persons~~parties at the expense 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~~indemnified party. (ed) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity provided for in ~~question (which consent shall not~~ this Section 12.10 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 (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 indemnifiable under 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~~ 12.10 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,~~ 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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~~ the Lender Group'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 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. Lender and Borrower hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or ~~registrant with respect to the Securities issued in any Securitization~~per capita allocation.

Appears in 1 contract

Sources: Credit Agreement (Entertainment Properties 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 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 possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 Documents~~such memorandum or prospectus or term sheets, ~~including~~as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “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 ~~(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~~sections reasonably requested) as reviewed and modified, as applicable, by 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 actually incurred (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 (~~iii~~C) agreeing to reimburse ~~each Indemnified Person~~ Lender, the ▇▇▇▇▇▇ Group and the Underwriter Group for any reasonable legal or other expenses reasonably and actually 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided and shall be applicable based on information previously provided by Borrower, and its Affiliates if Borrower does not provide the indemnification certificate. Notwithstanding anything to the contrary contained in this Section 9.2, Borrower shall not be required to indemnify Lender, the ▇▇▇▇▇▇ Group, or the Underwriter Group for any liabilities relating to untrue statements or omissions of fact which Borrower identified to Lender in writing at the time of Borrower’s examination of such Disclosure Documents. (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,~~ 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 Persons~~Lender, ~~as they are incurred,~~ the ▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities. Notwithstanding anything to the contrary contained in this Section 9.2, ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Group and the Underwriter Group shall not be entitled to indemnification under this Section 9.2 for any Liabilities to the extent that such Liabilities arise solely out of the fraud, gross negligence, willful misconduct or illegal acts of ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Group and/or 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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~indemnified 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 ~~which indemnification may be sought hereunder~~ any Liability (~~whether~~ or ~~not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding~~action in respect thereof) 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 therein which would otherwise 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.indemnifiable under

Appears in 1 contract

Sources: Loan Agreement (Cb Richard Ellis Realty Trust)

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 ~~possession~~possession 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 Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, 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 ~~Borrower~~Parent, 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 ~~9.2~~8.2. 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 ~~Borrower~~Parent, 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~~Parent, 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 ~~withheld~~withheld 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 ~~proceedings~~proceedings 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 ~~withheld~~withheld 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 ~~9.2~~8.2), then ~~Borrower~~Parent, 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~~Parent, 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~~Parent, 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 ~~9.2~~8.2, (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 Securitization~~Loan. (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 ~~9.2~~8.2. (hg) ~~The~~ Any Securitization Indemnification Agreement shall provide that, the liabilities and obligations of the Indemnified Persons and ~~Borrower under~~ Parent described in this Section ~~9.2~~ 8.2 shall survive the termination of such Securitization Indemnification, this Agreement and the satisfaction and discharge of the Debt. (ih) Notwithstanding anything to the contrary contained herein, none of Borrower or any of its Affiliates 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

Sources: Loan Agreement (Altisource Residential Corp)

Securitization Indemnification. (a) Borrower understands that certain of the Provided Information may be included in any Disclosure ~~Documents in connection with the Securitization~~ 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~~ respects. Lender hereby acknowledges and agrees that, except to the extent required by law, Lender shall not include information with respect to Sponsor’s organizational documents or financial statements in ~~Borrower’s possession~~the Disclosure Document. (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 ~~Securitization~~Property, the, Mezzanine 1 Collateral, the Collateral 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 that portion of such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the ~~Disclosure Documents, including, without limitation~~Property, the Mezzanine 1 Collateral, the Collateral and/or the Loan), as applicable, containing all sections ~~entitled “Risk Factors,” “Special Considerations,” “Description of the Collateral,” “Description of the~~ relating to Borrower, 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, 1 Borrower, Mortgage Loan Borrower, ~~the Collateral~~Maryland Owner, Affiliates of Borrower and Sponsor, the ~~Senior Mezzanine Collateral and/or Operating Company~~Loan, the Loan Documents, each Individual Property and to Borrower’s knowledge the Manager and any Franchisor, and any risks or special considerations relating thereto (but not including risks relating to local or federal law) (~~collectively with the Provided Information,~~ the “Covered Disclosure Information”), and that, to Borrower’s knowledge, such Covered Disclosure Information (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) jointly and severally indemnifying ~~Lender~~Lender (and for purposes of this Section 13.6, ~~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 clauses (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 officers~~any 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 Liabilities to which ~~any such Indemnified Person~~ Lender, the Issuer 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~~ such Covered Disclosure Information (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Mezzanine 1 Collateral, the Collateral 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 such Covered Disclosure Information (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Collateral and/or the Loan) or necessary in order to make the statements in ~~the~~ such Covered Disclosure ~~Information~~Information (including any Investor or Rating Agency “term sheets” or presentations relating to the Property, the Mezzanine 1 Collateral, the Collateral and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (~~iii~~C) 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 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 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 Property, the Mezzanine 1 Collateral, the Collateral and/or the Loan) or in connection with the underwriting ~~or the closing~~ of the ~~Loan (~~Loan, including ~~without limitation~~ financial statements of Borrower or Sponsor, operating statements, rent rolls, environmental site assessment reports and ~~operating statements and rent rolls~~ Property condition reports with respect to ~~the Properties),~~ each Individual Property and ~~in no event shall Borrower be liable for Liabilities arising from information contained in a Disclosure Document~~ further provided 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 reasonable 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 these obligations (other than 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~~indemnity obligations) 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~~ 13.6 do not increase Borrower’s obligations and liabilities ~~and obligations of~~ under 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)~~ Loan Documents except as set forth herein. Notwithstanding anything to the contrary contained ~~herein, Borrower shall have no obligation to act as depositor with respect to the Loan~~ herein or ~~an issuer or registrant with respect to the Securities issued~~ in any ~~Securitization.~~indemnification agreement,

Appears in 1 contract

Sources: Mezzanine Loan Agreement (Ashford Hospitality 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 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~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 Documents~~such memorandum or prospectus, ~~including~~as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “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 ~~(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 ~~Lender, each Noteholder, JPM~~ Lender (~~whether or not it is the Lender~~and for purposes of this Section 25.6(b), ~~any~~ Lender hereunder shall include its officers, employees and directors), 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~~ 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~~L▇▇▇▇▇ 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 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 (~~iii~~C) 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~~ 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)Project. 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Persons~~Lender, ~~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 25.6 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 25.6, 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 Person~~any 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 Person~~such 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 25.6, 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 Person~~indemnified 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~~ Sections 25.6(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 Sections 25.6(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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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~~ 25.6 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 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: Construction Loan Agreement (Maui Land & Pineapple Co 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 the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the ~~holder~~ holder(s) 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~~respects. (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 ~~Documents~~Documents specified by Lender and that to Borrower’s actual knowledge, ~~including~~each such Disclosure Document, ~~without limitation~~as it relates to Borrower, Borrower’s Affiliates, Guarantors, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description of~~ Property, any Manager (if applicable) and/or 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 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 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 Borrower’s review, as it relates to Borrower, Borrower’s Affiliates, Guarantors, the ~~Covered Disclosure Information~~ Property, any Manager (if applicable) and/or the Loan, known by 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 Borrower’s actual knowledge, required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) 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~~ 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 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~~ 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 (iiB) and (~~iii~~C) 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~~ 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 Borrower’s review, as it relates to Borrower, Borrower’s Affiliates, Guarantors, the ~~Covered Disclosure Information~~Property, any Manager (if applicable) and/or the Loan, or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in Borrower’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 ~~Information~~Document, 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 Borrower 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 Borrower 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 Borrower, operating statements and rent rolls with respect to the Property. (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 ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrower under this Section 9.3, notify Borrower 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~~ will not relieve it Borrower from any liability which it 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 Borrower. 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 any Indemnified Person, and it ~~shall notify~~ notifies Borrower of the commencement thereof, Borrower ~~shall~~ will be entitled to participate therein and, to the extent that ~~it wishes~~Borrower 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 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 sentence~~other 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~~ 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 Borrower, 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 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 Person(s) at the cost 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 PersonBorrower. Borrower 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), 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~~ 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 ~~proceedings~~proceeding. As long as Borrower has complied with its ~~obligations~~ obligation 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 (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 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 possession~~respects. (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 ~~Collateral~~Mortgage,” “Description of the ~~Mezzanine Loans~~Mortgage 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 (~~iii~~C) 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 (~~iii~~C) 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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: Loan Agreement (Park Hotels & Resorts 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 ~~possession~~possession 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 Securitization~~agent, any other co-~~underwriters,~~ underwriters or co-placement ~~agents or co-initial purchasers of Securities issued in the Securitization~~agents, 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~~C) 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 (~~iii~~C) 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 ~~9.2~~8.2. 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 ~~withheld~~withheld 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 ~~proceedings~~proceedings 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 ~~withheld~~withheld 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 ~~9.2~~8.2), 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~~8.2, (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 Securitization~~Loan. (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 ~~9.2~~8.2. (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 1 contract

Sources: Loan Agreement (American Homes 4 Rent)

Securitization Indemnification. (a) ~~Borrower~~ Each Obligor understands that certain of the Provided Information and the information required to be delivered by Borrower hereunder (the "Required Reports") 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 United States 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”)~~applicable law, 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~~Securities or other transfer of ownership with respect to the Securitization, ~~Borrower~~ each Obligor 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 any Obligor, any Subsidiary of an Obligor, and the Individual 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. (b) In connection with each of (x) a preliminary and a private placement memorandum or (y) a preliminary and final prospectus, as applicable, Borrower agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification ~~agreement~~ certificate: (i) provided Borrower has been requested by Lender to do so, and if the applicable items have been revised to reflect all of Borrower's comments, certifying that ~~(A)~~ Borrower has ~~carefully~~ examined those portions of such memorandum or prospectus, as applicable, expressly pertaining to any Obligor, any Subsidiary of an Obligor, and the ~~Disclosure Documents, including, without limitation,~~ Individual 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,” “The~~ " "Borrower” " and “"Certain Legal Aspects of the ~~Mezzanine Loans~~Mortgage Loan,” " (or analogous portions or sections) and ~~(B)~~ such sections (and ~~such~~ any other ~~information in~~ sections reasonably requested and pertaining to any Obligor, any Subsidiary of an Obligor, and the ~~Disclosure Documents (~~Individual Properties or the Loan), all of which sections have been identified 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”) 106 113 Borrower by Lender do not contain any untrue statement of a material fact or or, to the best of Borrower's knowledge, 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~~materially misleading as the applicable sections pertain to Borrower, the Loan and the Properties; (ii) indemnifying ~~Lender, each Noteholder, JPM (whether or not it is~~ Lender and the ~~Lender), any Affiliate~~ Affiliates of ~~JPM or~~ Lender that have filed a ~~Noteholder that has filed any~~ registration statement relating to the Securitization (the "Registration Statement"), each of their directors, each of their officers who have signed the Registration Statement and each Person who controls Lender or ~~has acted as~~ Lender Parent within the ~~sponsor~~ meaning of any federal or ~~depositor in connection with~~ state securities laws (collectively, the ~~Securitization~~"Lender Group"), any ~~Affiliate of JPM~~ underwriters selected by Lender 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 Lender Parent for 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~~ the underwriters in question, within the meaning of ~~Section 15 of the Securities Act~~ any federal or ~~Section 20 of the Exchange Act~~ state securities laws (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”)") 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~~ applicable portions of such sections described in Section 12.10(b)(i) expressly applicable and relating to the Obligors, any Subsidiary of the Obligors, the Individual Properties 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 and~~ misleading, provided, however, that Borrower shall not be required to indemnify Lender for any Liabilities relating to untrue statements or omissions which Borrower identifies to Lender in writing at the time of Borrower's examination of the Registration Statement; and (iii) agreeing to reimburse ~~each Indemnified Person~~ the Lender, the Lender Group and the Underwriter Group for any legal or other expenses reasonably incurred by such ~~Indemnified Person, as they are incurred,~~ Persons in connection with investigating or defending the ~~Liabilities provided~~Liabilities. Borrower's Liability under clauses (i), ~~however, that Borrower~~ (ii) above and this clause (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 prepared and furnished to Lender ~~or such Noteholder~~ by ~~or on behalf~~ any Obligor pursuant to provisions 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)Sections 12.08. 12.09, 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)12.10 hereof. 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~~ indemnified party under this Section 12.10 of notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the indemnifying party under this Section 12.10, 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 Person~~any indemnified party, and it ~~shall notify Borrower~~ notifies the 107 114 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 Person~~such 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 12.10, the ~~defense of such claim or action, Borrower~~ 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 sentence~~other 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 ~~Borrower~~the indemnifying party, the ~~Indemnified Person~~ indemnified party or ~~Persons~~ parties shall have the ~~right~~ right, following notice to and consultation with Borrower, 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 ~~Persons~~parties at the expense 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~~indemnified party. (ed) ~~Without~~ In order to provide for just and equitable contribution in circumstances in which the ~~prior consent of the Indemnified Person~~ indemnity provided for in ~~question (which consent shall not~~ this Section 12.10 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 (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 indemnifiable under 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~~ 12.10 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,~~ 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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~~ the Lender Group'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 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. Lender and Borrower hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or ~~registrant with respect to the Securities issued in any Securitization~~per capita allocation.

Appears in 1 contract

Sources: Credit Agreement (Entertainment Properties 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, term sheet 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) In connection with each of (i) a preliminary and a final private placement memorandum or (ii) a preliminary and final prospectus or prospectus supplement, as applicable, and (iii) the final term sheet, Borrower agrees to provide, at Lender’s request, an indemnification certificate (at no cost to Borrower other than its counsel fees and internal administrative costs): (A) certifying that Borrower has examined those portions of such Disclosure Documents reasonably designated in ~~connection with~~ writing by Lender for Borrower’s review pertaining to Borrower, Borrower’s Affiliates, Manager, Guarantor, the Property and/or the Provided Information insofar as such sections or portions thereof that relate to Borrower, Borrower’s Affiliates, Manager, Guarantor, the Property and/or the Provided Information (such portions, including risk factors related to the Property, the “Relevant Portions”), the Relevant Portions do not, as of the time of sale (as designated by Lender in advance in writing to Borrower and provided Borrower has reasonable time to update same) for the Securities to be issued in the Securitization, ~~an indemnification agreement~~ as of the date of the preliminary and final offering document for such Securities and as of the closing date of the Securitization (~~i) certifying that (A)~~ as designated by Lender in advance in writing to Borrower and provided Borrower has ~~carefully examined the Disclosure Documents~~reasonable time to update same), 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, provided, however, in no event shall Borrower be required to provide such certification with respect to any description of the terms and provisions of the Loan Documents, (iiB) indemnifying ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), ~~any~~ the Affiliate of ~~JPM or a Noteholder~~ ▇▇▇▇▇ Fargo that has filed ~~any~~ the registration statement relating to the Securitization (the “Registration Statement”) or ~~has acted~~ otherwise acts 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~~ “depositor” 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 ▇▇▇▇▇ Fargo, and any other placement agent or underwriter with respect to the Securitization, each of their respective directors and each Person who controls ▇▇▇▇▇ 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 out-of-pocket losses, third-party claims, damages or liabilities arising out of third-party claims (excluding 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 ▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the Liabilities arise out of of, or are based ~~upon~~ upon, (1) any untrue statement or alleged untrue statement of any material fact contained in any Disclosure Document or any other written information provided to potential investors or the ~~Covered Disclosure~~ rating agencies that is in conformity with the Provided Information ~~or arise out of or are based upon~~ (such other written information, the “Other Distributed Information”), (2) the omission or alleged omission to state in the ~~Covered Disclosure~~ Relevant Portions or Other Distributed Information a material fact required to be stated therein or necessary in order to make the statements ~~in the Covered Disclosure Information~~therein, in light of the circumstances under which they were ~~made~~made (and, in the case of the Term Sheet and Other Distributed Information only, when read together with the related offering circular), not misleading or (3) a breach of the representations and warranties made by Borrower in Section 3.1.31 of this Agreement (Full and Accurate Disclosure) and (~~iii~~C) 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 Person~~Lender, ~~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 or alleged untrue statement or alleged omission made (i) in the ~~Covered Disclosure Information~~ Relevant Portions or (ii) in any other document 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~~Property but only to the extent the same is identified in writing by Lender to Borrower in advance of the printing of the preliminary offering circular, preliminary prospectus or preliminary private placement memorandum, as the case may be ((i) and (ii) are collectively, the “Provided Information”), ~~and in no event~~ provided, that with respect to the Provided Information, Borrower shall not have any liability under clauses (B) or (C) with respect to an incorrect particular piece of Provided Information (“Deficient Information”) to the extent Borrower ~~be liable for Liabilities arising from information contained~~ delivers additional Provided Information that supersedes or corrects such Deficient Information in a ~~Disclosure Document that was not provided to Borrower for comment at least five (5) Business Days~~ reasonably sufficient time prior to ~~its dissemination~~ the printing of the preliminary offering circular, preliminary prospectus or ~~on which~~ preliminary private placement memorandum, as the case may be, and Borrower ~~provided comments~~ indicates to Lender in writing that such updated Provided Information is updated and supersedes the specifically identified previously delivered Deficient Information and such updates or corrections are not accurately reflected in the Disclosure Documents or Other Distributed 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 ~~failed to incorporate such comments (assuming such comments were accurate)~~accurately states the Provided Information in the applicable Disclosure Document. ~~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, or~~ the omission or alleged omission to state in the ~~Covered~~ Disclosure Document and/or the Provided Information a material fact required to be stated ~~therein or necessary~~ in the Disclosure Document and/or the Provided Information in order to make the statements in the ~~Covered~~ Disclosure Document and/or the Provided 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 Persons~~Lender, ~~as they are incurred,~~ the ▇▇▇▇▇ Group or the Underwriter Group in connection with defending or investigating the Liabilities; 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. (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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such indemnified party. After notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to~~ such indemnified party under this Section 9.2 that the indemnifying party will assume such defense, the ~~defense of such claim or action, Borrower~~ 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 sentence~~thereof; 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 ~~Borrower~~the 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~~indemnified 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~~indemnified party. No indemnified party may settle any action or proceeding for which an indemnifying party is liable under this Section 9.2(d) ~~Without~~ without the prior written 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~~ indemnifying party; provided that if at 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~~ time an ~~actual or potential~~ indemnified party ~~to such claim, action, suit or proceeding) unless Borrower~~ shall have ~~given~~ requested the indemnifying party in writing to reimburse the indemnified party for fees and expenses of counsel or any other expenses for which the indemnifying party is obligated under this subsection and indemnifying party has not reimbursed such ~~Indemnified Person reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out~~ expenses, indemnified party may enter into a settlement of such ~~claim, action, suit~~ proceeding or ~~proceedings. As long as Borrower has complied with its obligations to defend~~ action and ~~indemnify hereunder, Borrower~~ the indemnifying party agrees that it shall ~~not~~ be liable for any settlement ~~made by~~ of any ~~Indemnified Person~~ action or proceeding effected without ~~the~~ its written 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~~ such settlement is entered into more than forty-five (45) days after receipt by the indemnifying party of the aforesaid request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior 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.~~date of such

Appears in 1 contract

Sources: Loan Agreement (Urban Edge Properties)

Appears in 1 contract

Sources: Mortgage and Security Agreement (Alexanders 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 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~~ holder(s) 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 possession~~respects. (b) ~~Borrower agrees to provide~~Upon 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 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 (specified by Lender and that to ~~the extent~~ each Borrower’s actual knowledge, each such ~~information~~ Disclosure Document, as it relates to ~~or includes any Provided Information or any information regarding~~ Borrowers, Borrowers’ Affiliates, Guarantors, HRHI, the Properties, ~~Borrower, Mortgage Borrower~~the IP, the ~~Collateral~~Managers, the ~~Senior Mezzanine Collateral and/or Operating Company) (collectively with the Provided Information~~Liquor Manager, the ~~“Covered Disclosure Information”) do~~ Gaming Operator and/or the Loan (including each of the Components), 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 Borrowers, Borrowers’ Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~ Properties, the IP, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan (including each of the Components), 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 Information~~therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading, and (~~iii~~C) 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 Borrower, 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 (~~iii~~C) 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 Borrowers, Borrowers’ Affiliates, Guarantors, HRHI, the ~~Covered Disclosure Information~~Properties, the IP, the Managers, the Liquor Manager, the Gaming Operator and/or the Loan (including any of the Components), or the omission or alleged omission to state in ~~the Covered~~ any such Disclosure ~~Information~~ Document a material fact in any Borrower’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 ~~Information~~Document, 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 Borrower, 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 ~~shall~~will, if a claim in respect thereof is to be made against ~~Borrower~~Borrowers 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 wishes~~they 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 sentence~~other 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 ~~Borrower~~Borrowers, 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 Persons~~Person(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 ~~proceedings~~proceeding. 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 ~~9.2~~9.3), then ~~Borrower~~Borrowers, 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~~Borrowers, 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~~Borrowers, 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 ~~9.2~~9.3, ~~(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 ~~9.2~~9.3. (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: Loan Agreement (Hard Rock Hotel Holdings, LLC)

Securitization Indemnification. ~~(a)~~ 14.2.1 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”"), 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~~ Offering 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~~ 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 possession~~respects. ~~(b)~~ 14.2.2 Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 Documents~~such memorandum or prospectus, ~~including~~as applicable, including without limitation, 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 (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 ~~Lender~~Lender (and for purposes of this Section 14.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender hereunder shall include its officers and directors), any ~~Affiliate~~ affiliate of ~~JPM or a Noteholder~~ Lender that has filed ~~any~~ or may file 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~~ Lender within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange ~~Act~~ 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”)") 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 ~~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 (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 1 contract

Sources: Loan Agreement (Equity Inns 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~~respects. (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 Company~~Manager,” “The Borrower” and “Certain Legal Aspects of the Mezzanine ~~Loans~~Loan,” “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 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~~ 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 (~~iii~~C) 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 (~~iii~~C) 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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 ~~withheld~~withheld 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 ~~Borrower~~the 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 ~~Borrower~~the 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 ~~Borrower~~the 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~~Loan. (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 possession~~respects. (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 Documents~~such memorandum or prospectus, ~~including~~as applicable, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage Loan and Mortgaged 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 to the extent ~~such information relates~~ the same relate to ~~or includes any Provided Information or any information regarding~~ the ~~Properties~~Loan, the Loan Documents, Borrower, ~~Mortgage Borrower~~Guarantor, 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 (~~iii~~C) 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 (~~iii~~C) above shall be effective whether or not an indemnification ~~agreement~~ certificate described in ~~clause~~ (iA) above is ~~provided~~provided 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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 Person~~retain 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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

Sources: Loan Agreement (Wyndham International Inc)

Securitization Indemnification. (ai) Borrower understands that ------------------------------ certain of the information provided by Borrower pursuant to Section 4.1(r) above (the "Provided ~~Information~~ Information") 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 offered pursuant to the Securitization (the "Securities"), the Rating Agencies, and service providers ---------- relating to the Securitization. In Borrower agrees and covenants that it will cooperate with Lender in the ~~event that~~ preparation of the Disclosure Document ~~is required~~ and will provide all current information pertaining to ~~be revised prior~~ Borrower and the Mortgaged Property necessary to ~~the sale of all Securities, Borrower will cooperate with the holder of the Note in updating~~ cause the Disclosure Document ~~by providing all current information necessary~~ to ~~keep the Disclosure Document~~ be accurate and complete in all material ~~respects to the extent in Borrower’s possession~~respects. (bii) In connection with a Securitization transaction, Borrower agrees to ~~provide, in connection with the Securitization,~~ provide an indemnification agreement in which Borrower shall: (A) certify that (i~~) certifying that (A~~) Borrower has carefully examined ~~the~~ those portions of any Disclosure ~~Documents, including, without limitation~~Document reasonably identified by Lender as pertaining to Borrower, the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description of~~ Mortgaged Property and the ~~Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower” and “Certain Legal Aspects of the Mezzanine Loans,”~~ 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, 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~~ indemnify Lender, any placement agent or underwriter of the Securities, each ~~Noteholder, JPM (whether or not it is the Lender), any Affiliate of JPM or a Noteholder~~ party that has filed ~~any~~ a registration statement relating to the ~~Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of JPM or~~ securities (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~~ ----------------------- directors and each ~~Person~~ person or entity who controls ~~any~~ such ~~Person~~ party within the meaning of Section 15 of the Securities Act or Section 20 30 of the Exchange Act (individually and collectively, the ~~“Indemnified Persons”),~~ "Securities Group") for any losses, claims, ----------------- damages, ~~liabilities~~costs, ~~costs~~ expenses or ~~expenses~~ liabilities (~~including, without limitation, legal fees and expenses for enforcement of these obligations (collectively,~~ the “"Liabilities”)") to which ~~any such Indemnified Person~~ the ------------ Securities Group may become subject insofar as the Liabilities arise out of or are based upon (i) any untrue statement or alleged untrue statement of any material fact contained in the ~~Covered~~ applicable sections of the Disclosure ~~Information~~ Document identified by Lender as provided above as pertaining to Borrower, the Mortgaged Property or ~~arise out of~~ the Loan, or ~~are based upon~~ the omission or alleged omission to state in ~~the Covered Disclosure Information~~ such sections a material fact known to Borrower required or necessary to be stated ~~therein or necessary~~ in such sections in order to make the statements in such sections, in light of the ~~Covered Disclosure~~ circumstances under which they were made, not misleading or (ii) any untrue statement or alleged untrue statement of any material fact contained in any Provided Information, or the omission or alleged omission to state in such Provided Information a material fact known to Borrower required or necessary to be stated in such Provided Information in order to make the statements in such Provided Information, in light of the circumstances under which they were made, not ~~misleading and~~ misleading; and (~~iii~~C) ~~agreeing~~ agree to reimburse ~~each Indemnified Person~~ the Securities Group for any legal or other expenses reasonably incurred by such ~~Indemnified Person, as they are incurred,~~ parties 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 indemnity agreement will be in addition to any liability to the Securities Group 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 (Hob Entertainment Inc /De/)

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 possession~~respects. (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 Considerations~~Description of the Properties,” “Description of the ~~Collateral~~Loan 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, Borrower~~other Loan Party, Mortgage Borrower, Operating Lessee, any other Mortgage Loan Party, any Mezzanine B Loan Party, Guarantor, Indemnitor, Affiliated Manager, the Mortgage Loan Collateral, the ~~Senior~~ Mezzanine B Loan Collateral ~~and/or Operating Company~~and 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 (~~iii~~C) 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 (~~iii~~C) 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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~~proceedings 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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

Sources: Mezzanine Loan Agreement (BRE Select Hotels Corp)

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 ~~Securities~~Securities 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 possession~~respects. (b) Borrower ~~agrees to provide~~shall certify, in connection with ~~the~~ any Disclosure Document provided to Borrower by Lender in connection with a Securitization, ~~an indemnification agreement (i) certifying~~ that ~~(A)~~ Borrower has ~~carefully~~ examined the provisions of such Disclosure ~~Documents~~Document, ~~including~~reasonably designated in writing by Lender for Borrower’s review and pertaining to Borrower, ~~without limitation~~Guarantor, Manager and/or the ~~sections entitled “Risk Factors,” “Special Considerations,” “Description~~ Property (which designation shall in no event include the descriptions or summaries of the ~~Collateral,” “Description~~ terms and conditions of the ~~Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ Loan Documents) and ~~“Certain Legal Aspects of the Mezzanine Loans,” and~~ any special risks or considerations relating thereto (~~B) such sections and such other information in the Disclosure Documents (~~but not including risks or special considerations relating to ~~the extent such information relates to~~ local or ~~includes any Provided Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company~~federal law) (~~collectively with the Provided Information,~~ the “Covered Disclosure Information”) do and such Covered Disclosure Information does not (except to the extent noted by Borrower in writing to Lender if Borrower does not agree with the statements therein), as of the date of such certification, 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~~ . Borrower hereby agrees to 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 ~~Persons~~Parties”), ) for any liabilities, obligations, actual 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 or arise out of of, or are based ~~upon~~ upon, the omission or 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 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) a breach of the representations and warranties made by Borrower in Section 3.1.34 of this Agreement (except that (A) Borrower’s obligation to indemnify in respect of any information contained in a Disclosure Document that is derived in part from information provided by Borrower or any Affiliate of Borrower and in part from information provided by others unrelated to or not employed or engaged by Borrower shall be limited to any untrue statement or omission of material fact therein known to Borrower that results directly or indirectly from an error in any information provided (or which should have been provided) by Borrower and (B) Borrower shall have no responsibility under this Section 9.2 for (x) any untrue statements contained in any Disclosure Document to which Borrower or its authorized representative have objected to in writing to Lender so long as such objection is not inconsistent with information furnished to Lender by or on behalf of Borrower in connection with the origination of the Loan or (y) numbers which have been submitted by Borrower and adjusted by any of the Securitization Indemnified Parties from those submitted by Borrower, to the extent of such adjustment). Borrower also agrees to reimburse each Securitization Indemnified ~~Person~~ Party, within ten (10) Business Days after request therefor, for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified ~~Persons~~Party in connection with investigating or defending the Securitization Indemnification Liabilities. Borrower’s liability under this paragraph will be limited to any such Securitization Indemnification Liability that arises out of or is based upon an 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 Documents 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). This indemnity provision will be in addition to any obligation or liability which Borrower may otherwise have. (c) In connection with 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 ~~they~~ it relates to the Property, Borrower, Guarantor, any Affiliate of Borrower or Guarantor, Manager or any other aspect of the Loan, Borrower agrees to (i) indemnify the Securitization Indemnified Parties for Securitization Indemnification Liabilities to which any Securitization Indemnified Party may become subject insofar as the Securitization Indemnification Liabilities arise out of, or are ~~incurred~~based upon, an untrue statement or omission made 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 Document, in connection with the underwriting or closing of the Loan or any of the reports, statements or other information furnished by or on behalf of Borrower pursuant tothe 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 Party, within ten (10) Business Days of demand therefor, for any legal or other costs and expenses reasonably incurred by such Securitization Indemnified 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 ~~action~~action 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 action~~such 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 ~~Person~~Party, 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 ~~Person~~Party. 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 ~~action~~suit, 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 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 PersonParties. Borrower shall not be liable for the reasonable 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 ~~Person~~Party. The Securitization Indemnified Party shall instruct its counsel to maintain reasonably detailed billing records for reasonable fees and disbursements for which such Securitization Indemnified Party is seeking or intends to seek reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s reasonable fees and disbursements are related solely to the defense of a claim for which Borrower is required hereunder to indemnify such Securitization Indemnified Party. (e) Without the prior written consent of the applicable Securitization Indemnified ~~Person in question~~ Party (which consent shall not be unreasonably ~~withheld~~withheld 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 ~~proceedings~~proceeding. 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 ~~withheld~~withheld 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 ~~Person~~Party, 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 ~~Person~~Party, 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 ~~Persons~~Parties, 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) the Securitization Indemnified Parties and Borrower’s relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (B) the opportunity to correct and prevent any statement or omission; and (C) 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 per capita allocation. Notwithstanding the provisions of this Section 9.2, (AI) 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 (BII) 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 Securitization~~Loan. (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 ~~lawsuits~~claim, ~~claims~~ action, suit or ~~other proceedings~~proceeding. 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 1 contract

Sources: Loan Agreement (KBS Strategic Opportunity 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 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 possession~~respects. (b) Borrower agrees to ~~provide,~~ provide in connection with ~~the Securitization~~each 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 Documents~~relevant portions of such memorandum or prospectus or term sheets, ~~including~~as applicable, which relate to Borrower and its Affiliates or the Property, including without limitation, the sections entitled ~~“Risk Factors,”~~ “Special Considerations,” “Description of the ~~Collateral~~Mortgages,” “Description of the ~~Mezzanine Loans~~Mortgage 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 ~~losses~~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~~ 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 (~~iii~~C) 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 (~~iii~~C) 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 Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 sentence~~other 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 ~~Borrower~~the 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 ~~Persons~~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 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 Person~~indemnifying 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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.)

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 possession~~respects. (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 ~~misleading~~misleading (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 incurred~~within 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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 ~~withheld~~withheld 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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~~Loan. (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~~ 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~~Securities (or any class thereof), 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 ~~(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 the Properties~~Borrower, Mezzanine A Borrower, Mortgage Borrower, Borrower Affiliates, the Property, the Collateral, the ~~Senior~~ Mezzanine ~~Collateral and/or Operating Company) (collectively with~~ A Collateral, Manager and all other aspects of the ~~Provided Information~~Loan, ~~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~~Lender (and for purposes of this Section 9.2, ~~each Noteholder, JPM (whether or not it is the Lender~~Lender 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 Persons~~Lender 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 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 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 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 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 and rent rolls with respect to the Property. 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 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 legal or other expenses reasonably incurred by ~~such Indemnified Persons~~Lender, ~~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 shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such indemnified party. After written notice from ~~any Borrower~~ the indemnifying party to ~~an Indemnified Person of its election to assume the defense of~~ such ~~claim or action~~indemnified 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 sentence~~other 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 ~~Borrower~~the 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~~indemnified 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~~indemnified 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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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. (ig) Notwithstanding anything ~~to the contrary~~ contained ~~herein~~in this Article IX, Borrower ~~shall have no obligation~~ agrees to act ~~as depositor~~ in a commercially reasonable manner with respect to requests made by Lender or any Rating Agency in a Secondary Market Transaction; provided, however, all costs, fees and expenses of such Secondary Market Transaction (other than legal costs, fees and expenses of Borrower) shall be the ~~Loan or an issuer or registrant with respect to the Securities issued in any Securitization~~sole responsibility of Lender.

Appears in 1 contract

Sources: Mezzanine Loan Agreement (Telx Group, Inc.)

Securitization Indemnification. (a) Borrower 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 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 possession~~respects. (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 following sections of the Disclosure Documents: (1) in the case of the term sheet, the sections titled “Executive Summary and Transaction Highlights”, “Structural Overview – Mortgage Loan Monthly Payments”, “Certain Mortgage Loan Terms,” “Property Overview”, “Sponsorship and Management Overview” (which for the avoidance of doubt shall exclude MGM) and “Historical and Underwritten Financials” (limited to historical financials) (or sections similarly titled or covering similar subject matters) and (2) in the case of the other Disclosure Documents, the sections titled “Summary of Offering Circular” (solely to the extent “Summary of Offering Circular” relates to Borrower, Principal, Guarantor, any Loan Party, Manager (if Manager is an Affiliated Manager), the MGM/Mandalay Lease, the Management Agreement, the Franchise/License Agreement, the Loan and the Properties), “Description of the Properties,” “Description of the Mortgages,” “Description of the Mortgage Loan,” “Description of the Borrower, Guarantor and Related Parties” (which for the avoidance of doubt shall exclude MGM), “Description of the Property Manager” (if Manager is an Affiliated Manager), “Description of the MGM/Mandalay Lease,” “Description of the Management Agreement and Management Agreement SNDA,” “Description of the Franchise/License Agreement,” “Use of Proceeds,” “Annex A – Mortgage Loan Collateral Schedule,” “Annex E – Representations and Warranties of the Borrower” and “Annex F – Organizational Structure of the Borrower” or similar sections, in each case, (I) solely to the extent each of the foregoing relate to Borrower, Principal, Guarantor, any Loan Party, the Manager (if Manager is an Affiliated Manager), the MGM/Mandalay Lease, the Management Agreement, the Franchise/License Agreement, the Loan and the Properties, and (II) excluding (v) any statements and information relating to the cities and regions in which the Property are located (other than the Property addresses), including local market information and local market performance data, (w) any underwritten financial information (except to the extent such underwritten financial information is included in the Provided Information), (x) any information (including financial information or forecasted information) that is solely obtained from any third-party report, including, without limitation, zoning reports, 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 ~~sections entitled “Risk Factors,” “Special Considerations,” “Description~~ performance of the ~~Collateral,” “Description of the Mezzanine Loans,” “The Operating Company,” “The Borrower”~~ Properties and ~~“Certain Legal Aspects of the Mezzanine Loans,” and~~ other Collateral (~~B) such sections and such other information in the Disclosure Documents (~~except to the extent such ~~information relates to~~ projections or ~~includes any~~ reforecasts are included in the Provided ~~Information or any information regarding the Properties, Borrower, Mortgage Borrower, the Collateral, the Senior Mezzanine Collateral and/or Operating Company~~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~~ 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~~C) 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 (~~iii~~C) 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~~ misleading; (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 any filings under the Exchange Act (or the applicable provisions thereof) 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 a reasonable opportunity to review; and (iii) 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 (A) 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 and (B) Lender’s failure to incorporate any comment provided by Borrower in writing into the Covered Disclosure Information. (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~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 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; (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 and (iii) the Indemnifying Persons shall not be liable for any portion of the Covered Rating Agency Information to the extent that the Lender does not incorporate any comment provided by Borrower in writing with respect to such Covered Rating Agency Information. (f) Without the prior written consent of ~~the Indemnified Person in question~~ Lender or its designee (which consent shall not be unreasonably ~~withheld~~withheld 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 ~~proceedings~~proceedings 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 ~~withheld~~withheld 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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 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 (MGM Growth Properties Operating Partnership LP)

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 Agencies~~investment 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 Securities~~manner 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 possession~~any 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 Securitization~~at 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 Documents~~those portions of such memorandum or prospectus, ~~including~~as applicable, ~~without limitation~~reasonably 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, 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 Information~~statements 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 ~~Lender~~Lender (and for purposes of this Section 9.2, ~~each Noteholder~~Lender 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 Persons~~Lender 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 (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 (~~iii~~ii) ~~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 notice of ~~any claim or~~ the commencement of any action, ~~the Indemnified Person shall~~such indemnified party will, if a claim in respect thereof is to be made against ~~Borrower~~the 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 Person~~any 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 Person~~such 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 action~~defense, ~~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 sentence~~thereof; 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 ~~Borrower~~the 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 ~~withheld~~withheld 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 9.2~~c), ~~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 Borrower~~respect thereof); provided, ~~on the one hand~~however, 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 Securitization~~per 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 (Alexanders 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 possession~~respects. (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 Company~~Information) (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 ~~Borrower~~any 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 ~~Borrower~~an 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 ~~Borrower~~the 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 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 ~~proceedings~~proceeding. 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 ~~Borrower~~the 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~~the 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 ~~Borrower~~the 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~~Obligations. (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 1 contract

Sources: Loan Agreement (Maguire Properties Inc)

Common use of Securitization Indemnification Clause in Contracts